The issue of contested wills, and people being ‘disinherited’ from a parent’s will, has hit the headlines again after a long-running legal case was finally decided by a High Court judge.
The case of Ilot v Mitson, an estranged daughter and her deceased mother, has come to prominence again after the judge decided that the original award of £50,000, made to Ms Ilot in 2007, should be increased to £164,000.
While the laws surrounding contested wills have long been established, the case once again demonstrates the importance of making a will and the ability of family members who have been left out of a will to challenge it.
Ed Stanley, an expert in contentious wills and probate at Harrison Drury, looks at the Ilot v Mitson case and its lessons for those seeking to contest a will.
What’s the background to the case?
The deceased, Melita Jackson, died in 2006 leaving a net estate of £486,000. Her daughter Heather Ilott was the only child of her marriage, which ended when Ms Ilott’s father died in an accident. Ms Ilott began a relationship of which her mother disapproved and in 1977 eloped with her future husband whom she married in 1983. Ms Ilott was effectively estranged from her mother despite the daughter’s attempts at reconciliation. In 2002 her mother made a will excluding her daughter entirely. At the same time via her solicitor she wrote a letter explaining her reasons for doing so. Her 2002 will split her estate among three charities – Blue Cross, RSPB and RSPCA – with whom hitherto she had little connection. Ms Ilott was a full time mother to five children she raised with her husband and had not worked since 1984. The family’s income derived mostly from state benefits and they did not own their own home. On her mother’s death Ms Ilott brought a claim that provision should be made for her from her mother’s estate under the statutory authority of the Inheritance (Provision for Family and Dependants) Act 1975.
Why is it making the news again?
This case first came before the courts in 2007 and after a series of judgements the Court of Appeal held unanimously in 2011 that the original decision in 2007 to make an award in favour of Ms Ilott was correct. The matter was then referred back to a judge of the High Court to determine how much provision should be made for Ms Ilott from her late mother’s estate. The court has now decided that the original award made in 2007 – of £50,000 – should be increased to a level it believes constitutes more reasonable provision, that is the sum of £164,000, in effect one third of the estate. So it is the scale of the award and not the reasons behind the award being made in the first place that have brought this case back to prominence.
Why is this case described as a “landmark case”?
The media has described this as a landmark case, because many are claiming that the ruling could significantly weaken people’s right to leave money to those they want to inherit it. And so it might. In reality it is not a “landmark case” insofar as a definition of “landmark” is something which has radically altered the law from one position to another. Since the 1975 Act adult children have always been able to make a claim in circumstances where they have been excluded from a will or have not had reasonable provision made for them, either by the will or by intestacy. Over the years the courts have viewed adult children claims with varying degrees of enthusiasm. And the 1975 Act has always stated that the conduct of the testator – the person making the will – along with others would be taken into account. So there is nothing new in Ilott v Mitson. What it has done is to concentrate legal practitioners’ minds upon principles already long established, namely i) the basic premise in this country of testamentary freedom is something that is not completely protected even where adult children of the deceased are concerned; ii) adult children who are able to support themselves as well as those under 18 can apply and iii) the conduct of all the parties including the deceased will be taken into account.
What does it mean for those making a will?
Firstly this case emphasises the importance of making a will even though the provisions in the will were altered by the court. If someone dies without making a will then the ‘intestacy’ rules apply and they too can be challenged under the 1975 Act by someone who is excluded from them or for whom the provision can be said to be “unreasonable”. Making a will confers at least a degree of control over your estate.
When making a will it is important to consider all of those to whom it could be said that you owe a moral obligation. In the past it has been presumed that if a person making a will excludes a family member from the will or, as can happen, their own spouse, or makes little provision for them then if a letter is made accompanying the will setting out their reasons for doing so then the person excluded might struggle to bring a claim.
The ruling in Ilott v Mitson does not mean that any child excluded has an automatic right to succeed on a claim, but it does mean that decisions to exclude children, spouses and other family members or dependents will be scrutinised very carefully and more sympathetically and if the decision is unreasonable then it could well be reversed by way of the court making an order for provision from the estate for the excluded party.
A decision to include in the will a beneficiary with whom there might appear to be little or no connection with the testator should be explained and justified in a note accompanying the will. However, even this is not a guarantee that the estate will be distributed in accordance with the provisions made in the will. In many countries the law stipulates how someone’s estate or at least part of the estate has to be given away and the will cannot override those statutory provisions. This is known as ‘forced heirship’. It is widely assumed that no “forced heirship” rules apply in this country. This is true only insofar as there are no rules that say what you can and cannot put in your will. However, there are rules by virtue of the 1975 Act which mean that post-death, the distribution of an estate can effectively be re-written by a court inevitably against the wishes of the person leaving the estate.
What are my options if I feel like I have been left out of the will of a parent or close family member?
There is a wide range of categories of prospective claimants under the 1975 Act, but nonetheless it is restricted to certain classes of people. Chiefly, but by no means exclusively, these tend to be the children or spouse of the deceased. Each case turns on its own facts and so if you have been left out of a will, or if insufficient provision has been made for you by a will, or indeed by the intestacy rules, then you should seek immediate advice upon whether or not you qualify as a claimant under the 1975 Act and if there are merits in such a claim. If there is such a claim then the executors under the will, or those appointed under an intestacy, will be notified and in effect the administration of the estate will be suspended other than to preserve estate assets pending the resolution of the claim. The claim is not against the estate, but actually against the beneficiaries under the will or intestacy as it is their share which will be diminished if the claim is successful. Information concerning the estate needs to be obtained and the executors (even though they may be beneficiaries) must co-operate in disclosing information to genuine claimants. The law encourages parties to resolve their differences without recourse to litigation and only as a last resort can a claim be brought in the courts.
Who decides if I am entitled to make a claim against the money received by beneficiaries?
If agreement can be reached then this can be recorded in a court order, a binding legal contract or a Deed of Variation. If the claimant is a minor child (i.e. under the age of 18) the court will have to sanction the agreement (an infant settlement approval hearing will be required). If no agreement is reached then ultimately a judge will make the decision as to whether or not the person claiming is so entitled and, if so, how much if anything that person should receive by way of a redistribution of the estate. This can only occur after a trial when the judge will hear the evidence of all of the interested parties. The personal representatives of the estate will be bound by any order the court makes.
How long might it take for a claim to be heard?
For deaths occurring after October 1, 2014 a claim can be brought at any time against the estate, subject to a time limit: six months following the date of the issue of the Grant of Probate. There are so many factors which can affect how long it takes, for example, the actual administration of the estate itself. If it is a complicated estate with many assets, some of which might be abroad, it may take some time to actually establish the true value of the estate, without which no claim can proceed. Other factors can include how vigorously resisted the claim is and the number of witnesses that have to give evidence. It is not unusual for a claim to take 24 months. Some settle sooner than that, others go beyond.
I am an adult child and my last surviving parent has died leaving me nothing in the will. I am self-sufficient. Am I able to make a claim?
Although each case turns on its own facts, being self-sufficient may not of itself prevent you from making a claim. The court will want to consider many factors including the conduct of your parents towards you and others in their lifetime. The court will also wish to consider the financial circumstances of all of the parties to the claim – that is yourself and the beneficiaries. Other matters taken into account include the size of the estate. The position is somewhat different for disabled adult children.
What orders can a court make?
The court has freedom to divide the estate as it sees fit. It has power to order that any assets previously belonging to a deceased, but which do not fall into the estate, can in certain circumstances be brought back into the estate in order to satisfy a 1975 Act claim. Lump sum payments, regular payments of maintenance, the transfer of property, the creation of a life interest in a house or in cash; these are but a few of the many options available to a court.
Ed Stanley is an expert in contentious wills and probate. He has been involved in many cases across the country, representing adult and infant children and spouses who have been excluded from a deceased’s estate, or for whom insufficient provision has been made.
If you would like more information or advice on contesting a will or an estate, please contact Ed on 01772 258321 for a discussion as to how we can help you and the pricing options available. Unfortunately we cannot give free advice.
Harrison Drury are committed to getting you the best legal support in the North West. We have lawyers in Lancaster, Preston, Kendal, Clitheroe and Garstang.
I just wanted to add my Son had a good relationship with his father and worked with him in his shared business from age 16 up until he sold his share of the business to his partner and retired 4 years ago. He still remains working for the same business as a condition of the sale was that my son kept his job.
I believe that it was one of the other children that took the father to the solicitors to change or update his will 18 months ago and she was sent away and told she was not allowed to stay whilst the will was being made.
Also the three children from the marriage already own their own properties and my son is renting from a private landlord and has 4 children of his own
Hi
My Sons father died in October 2016 and he had 5 children. 3 children with his wife of 26 years and 2 others as a result of affairs during that marriage one of which was my son.
This was a planned pregnancy at the request of my sons father.
Prior to his death he had been divorced from his wife for 28 years and my son is now 30.
My son has not seen the will but has ordered a copy from the Wills and Probate service because probate has only just been granted
Two of the children from the marriage are executors and the 3 children from the marriage have inherited several properties valued at around £600,000 between them.
One of the properties had been their family home over 30 years ago before the divorce but the ex wife was bought another house as part of the divorce settlement.
My sons father remained in the original house and lived there until he died. My Son lived there with his father for a couple of years 14 years ago when he was 16
My son and the other child not from the marriage have both received just £6000 each
They been told that is all they are entitled to because the property was left to the children from the marriage with all inheritance tax to be paid. What money was left after tax was paid was to be shared equally between all 5 children.
Would my son have a valid claim under the 1975 Act in that insufficient provision has been for him in the will
My mother died in March 2016. Mother was married for 16 years to my father and there are 7 children from this union. After the divorce, she sold our home, moved to another state to be closer to her sister. Five of the 7 siblings were taken with her, my sister and I had married and stayed here in Virginia where we were born and raised. She supposedly took the money from selling the house in VA and bought another house in Wisconsin where she moved to. After about a year living in WI, she met and fell in love with her second husband. He had never been married, lived on a farm and welcomed my siblings along with mother. He loved the fact that my brothers were big enough to help him on the farm. My mother sold her home there in WI and used the money to pay off the mortgage on the farm. During this union, a daughter was born, my half sister. As the years went by, my three brothers eventually returned to Virginia and lived with our father until they married and had families of their own. My two sister, one went into service, the other went to college in Minnesota; they each married and had families of their own. My half-sister remained on the farm. She did work. She attended college, but did not make the choice to become independent enough to establish a family and her own home. Us 7 children were never estranged from our mother or step sister or her father. Because of the distance from VA to WI, we did not make yearly trips to visit, but kept in contact over the phone, letters, home movies, etc. Mama and her new husband even visited here in VA several time. Our mother and our father resolved there differences after 25 years apart and it seemed to relieve some of the tension among us 7. Daddy was always asking us about our half-sister and even had her picture in his home. So, there was absolutely no discontent between us 7 and our mother. At some point, all of us 7 made trips to visit in WI, sometimes together, sometimes just our family and even alone. All 3 brothers visited her at the hospital when she had heart surgery 2 years ago as well as my 2 sisters and half sister. After she felt better, I went alone and spent a week with her. We nor she ever missed a birthday, birth, graduation, special events of any kind without contacting each other. Speaking for us 7, we had a good family relationship. During her heart surgery, she appointed our half sister to manage her care since she never left the home and was there everyday. Us 7 did not object. There were frequent phone calls from my half sister about mama’s state of health and she seemed to appreciate any advice from us. Mother spent the last several months of her life in a nearby nursing facility that she had worked in for many years, retiring at about age 74. At mother’s death, there was agreement with all 7 of us that mama would have to be cremated to be buried by her mother, her wish ever since her mother died. We 7 knew that our half sister had been verbally appointed to oversee mother and her needs during her illness before she died. However, us 7 did not know that we were not included in mothers will. The will only referred to her beloved daughter (our half sister)with no reference to us 7. Not even our names were mentioned. All of mothers assets were left to our half sister. Now she comes along and wants us to help pay for the funeral. My half sister told me that the farm was worth millions of dollars because parts of it sits on a sand mine. I am the oldest of the 7 siblings. I want to know what we 7 can do to obtain what is rightfully our inheritance from our mothers part of the estate. There may be other issues that I am not aware of, because mother never discussed any of this with us 7. We loved our mother and she loved us. We were never in any way an estranged family. Can you help us 7? If not, can you suggest another direction to take? Any information will be helpful. Thank you.
Dear Frieda
Many thanks for the post to our blog. Unfortunately we are only able to advise on matters arising within England and Wales, but hope that you are able to get the assistance you need.
Many thanks
David