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Ilott v Mitson decision ‘reinforces the importance of testamentary freedom’

The Supreme Court has today published its judgment in the Ilott v Mitson will dispute case, allowing three animal charities to claim money awarded to them in a will, which has been in dispute since 2004.

The private client team and the dispute resolution teams at London law firm Hodge Jones & Allen commented on the judgment.

Nicola Waldman, partner in the firm’s private client team, said:

“This decision reinforces the importance of testamentary freedom – those making wills can have a greater expectation that their wishes will be taken into account.

“This is also good news for charities. The Court of Appeal decision suggested that as they had little or no expectation of benefiting from a will, this was justification enough to reduce their share. The Supreme Court have said that this is the wrong approach and so I would expect to avoid the potential flurry of claims we could have seen otherwise by children whose parents had chosen to give to good causes.

“Had the decision gone the other way, we might have been heading for more of a forced heirship outcome, as they have on much of the Continent, whereby if parents did not leave part of their estate to their children they would risk an almost certainly successful claim.

“I advise those making wills to consider carefully any decision to exclude their children. If they do, they should give detailed reasons for this and also explain why they are providing for the alternative beneficiaries, such as charities, so that this can be presented to the court if a claim is made against their estate. By doing so they can have peace of mind that challenges to their will are less likely to succeed and that their wishes will be carried out.”

Joseph Henry, an associate in the dispute resolution team, said:

“The Supreme Court has today found that someone’s testamentary wishes are given substantial weight when considering a claim under the Inheritance Act 1975. Ms Ilott’s estrangement from her mother was an important factor in this case, as was the fact that she knew her mother had no intention of leaving her anything.

“It has also clarified that the purpose of such a claim is to provide what would be reasonable maintenance only – not what would be desirable. The impact on Ms Ilott’s entitlement to means-tested benefits does not appear to be a good enough reason to warrant a higher sum being awarded in this case.

“Lord Hughes’ judgment is helpful in clarifying that the focus should be on whether the deceased made reasonable financial provision and not whether ‘the decision’ made by the deceased was reasonable (or unreasonable). The fact that a deceased’s decision may be unreasonable is not determinative of whether or not reasonable financial provision has been made.

“The judgment highlights the distinctions between claims brought by spouses/partners of the deceased and other types of claimants. Claimants who are not spouses/partners are more limited in that reasonable financial provision is akin to maintenance. The judgment assists in defining ‘maintenance’ with a focus on income and living expenditure. If reasonable financial provision or maintenance is to include meeting housing needs, a more likely outcome will be a life interest rather than payment of a lump sum.

“When considering a claimant’s resources, state benefits and whether they are likely to continue is considered to be a relevant resource.

“The judgment makes it clear that judges still have very wide discretion when considering such cases and deciding which orders to make. Lady Hale comments that currently the law provides no guidance on how much weight should be given to the various factors judges need to take into account.”

For further information, please contact:
Louise Eckersley at Black Letter Communications
020 3567 1208


Notes for Editors

Hodge Jones and Allen

  • Hodge Jones and Allen is one of the UK’s most progressive law firms, renowned for doing things differently and fighting injustice. Its managing partner is Patrick Allen.
  • For almost 40 years’ the firm has been at the centre of many of the UK’s landmark legal cases that have changed the lives and rights of many people.
  • The firm’s team of specialists have been operating across: Personal Injury, Medical Negligence, Industrial Disease, Civil Liberties, Criminal Defence, Court of Protection, Dispute Resolution, Employment, Family Law, Military Claims, Serious Fraud, Social Housing, Wills & Probate and Property Disputes.
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