5 May 2017

Can children be successfully disinherited?

Ilott (Respondent) v The Blue Cross and others (Appellants)

The law in England and Wales allows parents to disinherit their children by leaving them out of their Wills. This differs from other countries, such as France, where children are automatically entitled to a share of their parents’ estates. However, the Inheritance (Provision for Family and Dependants) Act 1975, offers the means for adult children to claim reasonable financial provision for maintenance from their parents.

The Supreme Court’s recent judgment in Ilott v The Blue Cross and others was the last of several judgments concerning this case (formerly known as Ilott v Mitson). In 2002 Mrs Jackson made her last Will and explained that she wished to disinherit her daughter, Heather. The two had been estranged since 1978 and Mrs Jackson instead wished to leave her estate to three animal charities. Following Mrs Jackson’s death in 2004 (estate valued at £486,000), Heather made a claim under the 1975 Act. Awards to Heather went back and forth and in 2015 the Court of Appeal awarded her £164,000. The three charities challenged this decision and subsequently in March 2017 the Supreme Court lowered Heather’s award to £50,000, being the amount she was originally awarded by a District Judge.

This is the first 1975 Act claim to reach the Supreme Court and two points in particular can be noted from this landmark judgment, which overturned the Court of Appeal’s decision.

Firstly, unlike the Court of Appeal, the Supreme Court gave considerable weight to Mrs Jackson’s wishes and the long estrangement between herself and her daughter. Whilst these factors are not conclusive, the Supreme Court argued that they are circumstances which must be taken into account.

Secondly, the Supreme Court disagreed with the Court of Appeal’s view that the charities had no competing needs. The Supreme Court highlighted that charities rely hugely on testamentary legacies and receiving a substantial share of Mrs Jackson’s estate would not be a “windfall” to the individual charities, rather valued income.

Notwithstanding the above reasoning, Heather was awarded £50,000, for “maintenance of daily living”. Although this figure varies significantly from £164,000, it shows that an adult child can still succeed in a 1975 Act claim, showing that it is difficult to completely disinherit a child.

The “unsatisfactory state of the present law” was highlighted by Lady Hale who understood “the difficulty in the relationship between the freedom of property owners to dispose of their property as they see fit and their duty to fulfil their family obligations”. The lack of legislative clarity will lead to inconsistent judgments, based on fact specific cases. Value judgments will mean that judges will unsurprisingly reach different conclusions. Whilst it can be said that the 2017 judgment highlights the importance of testamentary freedom, the law is simply not clear enough to ensure that Will makers’ wishes will consistently be upheld.

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Carolyn Green, Partner
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