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Unanimous Supreme Court decision finds in favour of charities – the pendulum swings back towards the principle of testamentary freedom.

The Supreme Court has handed down judgment in Ilott v. The Blue Cross & others, the first case under the Inheritance (Provision for Family and Dependants) Act 1975 to reach the country’s highest court. The charities as beneficiaries of the estate under the Will left by the late Mrs Jackson appealed against the Court of Appeal’s judgment in favour of her daughter, the Claimant, Mrs. Heather Ilott from Hertfordshire.

The Supreme Court unanimously allowed the charities’ appeal on the question of reasonable provision for an estranged adult child.

The appeal involved an estranged adult daughter disinherited in favour of charities. The Claimant was initially awarded £50,000 by a district judge in 2011. She appealed against that award arguing that it was too low and receiving a lump sum would result in the loss of her means-tested benefits.

In 2015 the Court of Appeal awarded Mrs Ilott (1) £143,000 to buy the house she lived in and (2) an option to receive a further £20,000 in one or more instalments (structured in that way to avoid the loss of means-tested benefits). Such award represented a considerable proportion of the estate worth in total £486,000.

The charities appealed the Court of Appeal decision, and the case was heard in December 2016 by the Supreme Court. In March 2017 the Supreme Court handed down its decision allowing the charities’ appeal and reinstating the award of £50,000 made by the District Judge.

Reaction from 5 Stone Buildings, the chambers of Penny Reed QC and Hugh Cumber who acted for the successful charities identifies that

“The Supreme Court emphasised the importance of limiting awards to adult children to “maintenance”, observing that this was an important and deliberate legislative choice, and endorsing the comment made in Coventry [an earlier case authority] that the purpose of the Act is not to provide legacies to an applicant. It is now clear that making reasonable provision for “maintenance” does not means providing everything the applicant reasonably needs, and the Supreme Court’s judgment makes clear that an applicant’s needs will not necessarily be the measure of an award under the Act.

The Court should not fix a hypothetical standard of provision and then adjust it for the section 3 factors [the section in the legislation detailing the factors the court must take into account]; the Act requires a single assessment by the judge, and this assessment might be “coloured” by any of the section 3 factors, including estrangement. In this case the circumstances of the relationship between Mrs Ilott and the Deceased carried weight”.

The long established principle of ‘testamentary freedom’ – a person’s right to dispose of his/her own property in any way they wish – enjoys strong support from public opinion. The Supreme Court decision this month goes some way to address the concerns expressed by many when the Court of Appeal gave judgment back in 2015 on this claim on an estate.

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