The legal wishes of the dead have long been fertile ground for domestic drama. Shakespeare’s As You Like It opens on the theme: “As I remember, Adam, it was upon this fashion bequeathed me by will”. That drama proceeded from a father’s unequal testamentary provision for his sons. The litigation in Ilott v Mitson [2015] EWCA Civ 797 began with a mother’s failure to make testamentary provision for her only daughter. When Melita Jackson died in 2004, her daughter Heather Ilott was then 43 years old with five children of her own. She was living with the support of state welfare and her husband’s income from part-time work. Heather had left home at the age of 17 to marry her husband, and that marriage, strongly opposed by her mother, led to the estrangement of mother and daughter ever after. By her last will, Mrs Jackson left her entire £486,000 estate to charity (the vast majority to animal charities in which Mrs Jackson had previously shown no significant interest). She also drew up a letter of wishes expressing her reasons for excluding her daughter from any benefit in the estate. Following Mrs Jackson’s death, Mrs Illot claimed financial provision under The Inheritance (Provision for Family and Dependants) Act 1975. The claim was opposed by the animal charities and by the executors of the will (Mr Mitson and Mr Land).
Section 3(1) of the 1975 Act lists the matters that the court shall have regard to when exercising its discretion, each of which “may be of infinitely variable weight, on the particular facts of any given case” (Lilleyman v Lilleyman [2012] EWHC 821 (Ch); [2013] Ch. 225). The factors include such things as resources, needs and obligations and the size of the estate, but also, as the court thinks relevant, “any other matter, including the conduct” of the parties (s.3(1)(g)). This encourages value judgments on the behaviour of the applicant and the deceased. Thus, in the first decision in the protracted series of hearings, District Judge Ian Million held in 2007 that “Mrs Jackson had acted in an unreasonable, capricious and harsh way” [para 22]. The mother’s decision to give her daughter nothing was not “reasonable financial provision” under s.2 of the Act, even though it was supported by an express statement of reasons. The decision to make an award was upheld by the Court of Appeal in 2011 and the case was sent to the High Court to determine quantum (DJ Million had awarded £50,000). It was on the question of quantum that it recently came again to the Court of Appeal ([2015] EWCA Civ 797). Arden LJ asked “whether reasonable financial provision can and should be made for the appellant’s maintenance which relieves her everyday living expenses without affecting her state benefits” (para [1]). The Court of Appeal concluded that the daughter should be awarded £164,000 to be used to enable her to buy her home from a housing association, plus a lump sum of £20,000 to produce an income small enough to leave her means-tested welfare benefits undisturbed. Arden LJ purported to make no finding on fault, but did note evidence “of Mrs Jackson’s inability to make lasting relationships with anyone” (para [51]).
Cases will continue to be decided on their own facts. In Ilott the truly relevant fact – though the court did not say so in express terms – may have been the financial competition between needy grandchildren and large animal welfare charities. Change those facts in any small degree – suppose, for example, that there were no grandchildren or that the charity had been a charity for homeless humans – and the decision might have been different. Cases decided on their own facts beg the question of the limits of the 1975 Act, and the more fundamental question “what is the purpose of the statute?” In Illot, the statute served to redistribute wealth on no basis known in property law. It did not discharge a legal obligation or reward an expectation or compensate reliance. Neither did it purport to meet dependency, since the daughter was an independent adult. It did not even relieve the burden on the welfare state (indeed, it was expressly designed to keep that burden on foot). To judge from Illot v Mitson, the purpose of the 1975 Act is to provide for reasonable need if there is no good reason not to.
It may be that the decision sets no precedent, but it certainly sets a challenge. The challenge is to know what, if anything, a parent can do to ensure that their estranged adult child will take no interest in their estate. A clause in the will excluding interference can prevent variation of the will in favour of a claimant but cannot exclude the 1975 Act since it operates outside the will. A letter of wishes would also appear to hold limited weight. The only sound advice might be to give it all away before you die (six years before should suffice to escape the statute: s.10), but even that might not be enough to keep it out of the hands of a well-intentioned Court of Appeal. In Pennington v Waine [2002] 1 WLR 2075, Arden LJ perfected a lifetime transfer (that had been commenced by the transferor but not completed before she died) on the doubtful ground that the deceased “donor” had been conscience-bound to make the donation. One is bound to question whether the good will of a judge is preferable to the ill will of an owner in the matter of wealth allocation. Whatever the legal position, the domestic drama is unavoidable when a living parent diverts their estate away from an estranged daughter. In Shakespeare’s King Lear it was the start of the whole tragic tale.
Featured image: “Lady Justice” by AJEL, Public Domain via Pixabay.
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