Ilott v Mitson

  • Date : December 2011

AUTHOR: Sidney Ross is a Barrister at 11 Stone Buildings, Lincoln’s Inn, London

[1] Disinheritance, as the author has previously observed, has been a constant and popular theme in English literature and drama1. From Mrs Frances Sheridan’s sentimental novel The Memoirs of Miss Sidney Bidulph2 to Nancy Mitford’s Love in a Cold Climate3, fictional parents have disinherited their daughters, often because of their determination to contract a marriage which was, in the eyes of their parents, unsuitable. A real-life story of that nature, which began in the 1970s, has recently been brought to its conclusion with the refusal by the Appeal Committee of the Supreme Court on 27 June 2011 to grant permission to appeal against the decision of the Court of Appeal in Ilott v Mitson (or, to give its full title, Heather Ilott v David Mitson, Michael Land, The Blue Cross, The Royal Society for the Protection of Birds and the Royal Society for Prevention of Cruelty to Animals4). This article will examine the original judgment, the reasons why it was overturned on the first appeal, the reasons why the Court of Appeal decided that Eleanor King J was wrong to do so, and the polarisation among commentators, which is indicated by its title.


[2] The summary of the following facts is taken from the judgment of Eleanor King J in H v J’s Personal Representatives, Blue Cross, RSPB and RSPCA5, which was itself an appeal against the order of District Judge Million (as he then was). By her will dated 16 April 2002, the deceased, Melita Jackson (J), made no provision for her only child (H), leaving her entire estate of GBP486,000 to the three charities named above. With the will was a letter of wishes explaining her reasons for excluding H from benefit. H, born on 7 September 1960, was the posthumous child of J’s marriage, J had no children by her subsequent relationship with B, who died in 1996. The three of them lived together until early 1978, when H secretly left home to live with N in his parents’ home. She was reported as missing but when found, she refused to return. That relationship had been formed in 1977 and J strongly disapproved of N. As Eleanor King J put it, the resulting disagreement went far beyond the sort of normal teenage disagreements that occur between adolescent daughters and mothers.

[3] For the next five years, there was no contact between them but, after J had been told by N’s mother in May 1983 that H was pregnant, there was a reconciliation, which lasted about a year. However, on 21 March 1984, J made a will in which H was excluded from all benefit and wrote a letter of wishes which referred to H having left her in 1978 and married in 1983. After an unpleasant telephone call from N in May 1984 (in which H was also involved), relations broke off and there was no contact between H and J until they met in April 1994 accidentally. This reconciliation terminated abruptly after a visit by H, N and their four children to J on 1 June 1994, the occasion of her 60th birthday. J did not share their view that the day had gone well and wrote a highly critical letter to H the following day. The final attempt in 1999 also occurred as the result of a chance meeting, but in spite of the written apology from H, which J demanded and received, the reconciliation did not last, apparently because H had named her last child after her mother-in-law, whom J disliked. After executing the April 2002 will, J wrote to H to tell her what she had done. In her reply H said: ‘…I have to accept that you have rejected me. It is very upsetting to know this but you obviously have your reasons…’ There does not appear to have been any further communication between H and J before J’s death on 10 July 2004.

The first hearing

[4] The claim was heard by District Judge Million on 29 and 30 May 20076. The major factors underlying his eventual finding that J’s will did not make reasonable provision for H were the obligation owed to H and the lack of obligation towards the beneficiaries of J’s will, the conduct of J and H towards each other, and the precarious financial position of H and her family. As to obligations, he said that J ‘owed her daughter the ordinary family obligations of a mother towards her only child who was an independent adult’, that she had no responsibility or obligation towards anyone else, and that she was aware of the responsibilities and obligations of H (who had very little money) towards her own five children7. However, he accepted that J had gone out of her way over a number of years to tell H that she felt no responsibility to her as a daughter, because she left home at 17.

[5] In relation to conduct, he observed that a daughter was entitled (and indeed would be expected) to make a life with a partner of her own choice and could reasonably hope that a parent would accept that choice and not blame her for it. He found that the 2002 letter of wishes contained many inaccuracies and the overall impression created was unfairly critical of H, though he accepted that H and N bore some of the responsibility for the failure to achieve a sustained reconciliation. It was clear to him ‘the overwhelming and long-standing reason why J made no provision for her daughter was that she left the home of her mother at the age of 17 years to go and live with a man of whom her mother disapproved’ and that ‘the only apology which would have satisfied J would have been one in which H in effect rejected her husband’.

[6] A crucial part of his judgment, and one which attracted much comment in the course of both appeals, was that he was satisfied ‘that the rejection by the mother of her only child at the age of 17, and which she then maintained for the rest of her life was unreasonable and that this has led to J unreasonably excluding her daughter from any financial provision in her will, despite her daughter’s obviously constrained and needy financial circumstances and her daughter’s wish for and attempts at reconciliation’.

In the result, when the judgment was handed down some three months later, he awarded her GBP50,000. However, the order was not perfected until 17 December 2007. By a notice of appeal dated 17 January 2008, H appealed on the ground that the award was insufficient, upon which the charities cross-appealed on the ground that the Judge had failed to apply the law properly and that had he done so, he would have concluded that no provision was reasonable provision.

The first appeal

[7] It was nearly two years before the appeal was heard; judgment was given on 1 December 2009. After setting out the history of the case and the facts, Eleanor King J dealt with the law, both as to the circumstances in which an appeal might succeed, and the basis on which family provision claims by adult children should be approached. The standard authorities relating to the exercise of appellate powers were cited8 and, in summary, Eleanor King J held that to interfere, she had to be satisfied that the District Judge had either erred in law or gone beyond ‘the generous ambit within which reasonable disagreement is possible and is, in fact, plainly wrong’.

[8] There were, inevitably, extensive citations from Re Coventry9 which drew attention to the following points:

8.1 There is a two-stage approach, which requires the court to determine, first, whether reasonable provision has been made for the applicant’s maintenance (a ‘value judgment’), and second, if it has not, the extent to which and the manner in which10 the court should exercise its powers under the Inheritance (Provision for Family and Dependants) Act 1975 (the 1975 Act) (a question of discretion). The s3 factors have to be considered at both stages of the process11.

8.2 The question for the court at the first stage is not whether the testator acted reasonably12, but whether, considered objectively, his dispositions or lack of dispositions produced an unreasonable result in that no provision or no further provision was made for the applicant. It follows from this that a claimant cannot succeed merely because the testator’s subjective reasons for not making provision or further provision for him or her appear outdated13. However, an express reason for rejecting the applicant may be highly relevant14.

8.3 Subject to fiscal demands and the court’s powers under the 1975 Act the testator is free to dispose of his estate as he pleases or to leave it to pass under the law of intestacy.

8.4 The combination of kinship, necessitous circumstances and the availability of resources to meet the applicant’s needs is not, without more, sufficient for the first question to be decided in his favour. However, there is no threshold requirement that an applicant has to establish a ‘moral obligation’ or ‘special circumstance’ to pass the first stage; though the existence of a moral obligation would be a weighty factor in the applicant’s favour15.

8.5 In a case where the applicant is of working age, with a job or capable of obtaining a job which would be available, the factors in favour of his claim for financial provision may not be of much weight in the scales16.

[9] The core argument on the appeal was that the District Judge had erred in law by asking himself the wrong question, and Eleanor King J accepted this to be the case, but she added that if she were wrong about that, he nevertheless erred in his balancing of the s3 factors with the consequence that he was plainly wrong in concluding that J’s will had failed to make reasonable provision for J. She concluded that in para 64 of his judgment: ‘…he made too great a leap when he said that that the rejection by the mother of her only child was unreasonable and that this has led her unreasonably to exclude her from her will despite her needy circumstances… He was so concerned with the rights and wrongs of the reconciliation that he asked himself the wrong question.’

[10] In her own analysis of whether the provision17 was unreasonable, she identified the following relevant factors:

10.1 H and N had lived all their married life in the belief that they had no expectations, and after the final failed attempt at reconciliation, H had accepted that no provision would be made for her.

10.2 H (and, in relation to one particular incident, N) bore substantial responsibility for the failure of the attempts at reconciliation.

10.3 The family’s necessitous circumstances were due to a ‘lifestyle choice’, which required N (within his physical limitations) to be the breadwinner and H to act as homemaker.

10.4 Such obligations as the District Judge considered that J owed to H were not ‘the sort of “weighty factor” envisaged by their Lordships in Espinosa… the estrangement having lasted all the daughter’s adult life meant that, to all intents and purposes, there was no relationship out of which any obligation could arise’.

[11] She concluded that the District Judge, having looked at each s3 factor separately, failed to stand back and assess the impact of them taken together. Had he done so, he would, in her judgment, have concluded that: ‘…the court was left with a filial relationship and necessitous circumstances and nothing more of sufficient cogency to drive a court to conclude that, in all the circumstances of the case, no provision for the daughter was unreasonable provision’18.

[12] The judgment was hailed as ‘…a clear and eloquent judgment [which] provides a vivid illustration of the principle of freedom of testation. There is no concept of “forced heirship” in the law of England and Wales and, as her Ladyship notes19, so long as that is the case the courts will decline to step in and interfere with the validly expressed intention of a testator in relation to his or her adult children, albeit in necessitous circumstances’20. It met with approval from a number of commentators21, on the grounds that there had been a long estrangement which the daughter had done little to repair, that she never had any expectation of receiving benefit from her mother’s estate22, and that Eleanor King J had correctly identified the error made by the District Judge in focusing on the unreasonableness of J’s conduct and not on whether the provision made for H was objectively reasonable.

[13] A more substantial article discussing the outcome of the first appeal23 throws further light on the facts, as well as applauding the decision. It appears that H’s claim, when quantified during the trial before the District Judge, would have exhausted the estate, and that she was ordered to pay the bulk of the charities’ costs as she had failed to beat their Part 36 offer, which explains the decision to appeal on quantum. The article suggests that the error which the District Judge was held to have made arose in part from the claimant’s reliance on a mistaken interpretation of Re Myers24, a claim by the deceased’s 60-year-old daughter (BM). In that case the deceased, who died in 2002 leaving a net estate of GBP8,356,400, had made a settlement on BM in 1976, but left her nothing in his will. Both before and after making the settlement, the deceased wrote a number of memoranda expressing a very low opinion of her, in particular that she was hysterical, she had not taken proper advantage of the education25 which he had provided for her, and preferred to sponge off others than earn her own living. Balancing the factors for and against the claimant, Munby J concluded that the will did not make reasonable provision for her. Against her were the financial provision made for her during the deceased’s lifetime and the fact that, as he put it ‘many of her wounds were self-inflicted’, she had not made the best use of her education, and, having obtained a job as an established civil servant, threw it up in 1976. In her favour were her severely straitened circumstances, the fact that her situation was due to mental fragility and awkward personality rather than indolence, that she had not behaved as badly to the deceased as he seemed to have thought, and that he had very substantial wealth.

[14] It appears from the article that at the original hearing, H attempted to rely on the Myers case as authority for the proposition that a testator’s reasons for disinheriting the claimant had special importance and that, if the Judge had found them to be wrong or exaggerated, he should have awarded her such provision as J would have made but for those reasons. The District Judge did not accept that argument and, in any case, Myers is not authority for any such proposition. What it does demonstrate is that the court is entitled to take into account discrepancies between the nature and character of the claimant as perceived by the testator and its own perception of the claimant.

This is nothing new. It has for long been the case (though this is an extreme example) that a court can declare a will invalid if it was made under the influence of an insane delusion26, so there is no logical barrier to its having regard to the fact (if it be a fact) that the testator’s dispositions were based on plainly inaccurate or unsustainable reasons. Indeed, Ilott v Mitson has recently been discussed in the context of ‘unreasonable and irrational wills’27. On any footing, the expression of irrational or grossly inaccurate views about the claimant by the testator is capable of being a relevant matter for the purposes of s3(1)(g).

The second appeal

[15] At this point, the proponents of testamentary freedom appeared to have ‘held the place of slaughter at the end of the day’28, but on 18 November 2010, Wilson LJ, at an oral hearing, granted permission to appeal. Sir Nicholas Wall P, giving the leading judgment on the appeal, referred29 to Wilson LJ’s observation when granting permission that if either DJ Million or Eleanor King J sitting at first instance had dismissed H’s claim, it was very much in doubt whether she would have secured a reversal of that dismissal on appeal. As is clear from the citations referred to in para 7 above, Eleanor King J was well aware of the criteria which she, as an appellate tribunal, had to apply. Such considerations underline the message in Re Coventry that great weight must be attached to the value judgment reached by the court of first instance and that any appellate court should think long and hard before coming to a contrary conclusion30.

[16] As with the judgment of Eleanor King J, Re Coventry was extensively considered. In Wall P’s view, it bore careful examination both for what it said and, more importantly, what it was believed to say, but in fact does not say. It was also important to resist the temptation to impose judicial glosses onto the statute31. The main points (all of which are familiar to practitioners in this field) that emerged from his consideration of the relevant authorities are:

16.1 Kinship, necessitous circumstances and the availability of resources are not sufficient to found a claim; there has to be some additional reason why it is unreasonable that no, or no greater provision, was made32.

16.2 Notwithstanding the use of the words ‘some sort of moral claim’ by Oliver J in Re Coventry33 and ‘special circumstance, typically a moral obligation’ by Nourse LJ in Re Jennings34, there is no threshold requirement to demonstrate the existence of a moral obligation; see Re Hancock35.

‘There is no single essential factor which is essential to the success of, or will inevitably result in the failure of, a 1975 Act application’

16.3 There is no single essential factor which is essential to the success of, or will inevitably result in the failure of, a 1975 Act application. As Ewbank J pointed out in Re Debenham36, in the case of a grown-up man capable of working, such as Re Coventry, one would look for special circumstances, but Re Debenham (where the applicant was the 58-year-old daughter of the deceased, and was epileptic) was not such a case.

16.4 The words ‘obligations and responsibilities’ in s3(1)(d) of the 1975 Act are not to be narrowly construed as legal obligations; the force of the word ‘moral’ is to put the deceased’s obligations and responsibilities into a broader context37.

[17] For the charities, it was primarily argued38 the case fell squarely within Re Coventry; there was simply an impecunious applicant and an estate from which her needs could be met. H was not disabled from working and her precarious financial position was the result of the way in which she had chosen to lead her life. She had no expectation of any benefit from J and there was nothing which made it objectively unreasonable for her to receive no provision from the estate, save for her necessitous circumstances, which were insufficient without more. The Judge had been entitled and bound to set aside the District Judge’s judgment; he had over-emphasised J’s subjective reasons for excluding H from benefit rather than assessing whether the result was objectively reasonable.

[18] Emphasising that the value judgment made at first instance should not be lightly disturbed unless the conclusion reached was plainly wrong, Wall P rejected the primary argument for the following reasons:

18.1 The District Judge had not asked himself the wrong question. He had gone through the s3 factors and quoted the relevant passage from Re Coventry39, which emphasised that the result must be unreasonable.

18.2 He did not err in the balancing of the s3 factors. Further, he was not under an obligation to ‘balance’ the s3 factors or to explain why the combination of those factors led him to conclude that no provision was unreasonable. Having reached the stage at which his discretion fell to be exercise, he explained fully what relief he was minded to award, and why40.

18.3 The District Judge was plainly right to hold:

18.3.1 that H was entitled to make a life with a partner of her choice and have a family of her own, and reasonably to hope that a parent would accept such a choice and not blame her for it,

18.3.2 that it was reasonable for H to remain at home and that even if she were able to obtain paid work outside the home, she would still be in need and could support herself only ‘to some limited extent’.

Wall P concluded that the case was clearly distinguishable from Re Coventry and that the District Judge’s findings under the s3 exercise were amply sufficient for him to arrive at the value judgment that the absence of provision was unreasonable. The passage from the judgment of the District Judge which underlies that conclusion41 reads: ‘In my judgment, all of the above factors have produced an unreasonable result in that no provision was made for [H] in her mother’s will in circumstances where [H] is in some financial need. However, I accept that [H] has not had any expectancy of any provision for herself. [H and her husband] have managed their lives over many years without any expectancy that [H] would receive anything. That does not mean that the result is a reasonable one in the straitened circumstances of the family. But it does mean, in my judgment, that provision must be limited.’

[19] Arden LJ42 confined herself to points not covered in the judgment of Wall P. From the overall conclusion reached by the District Judge, she extracted three value judgments. Two of these are essentially those approved of by Wall P and set out in para 18.3. The other, which follows from 18.3.2, was that families such as those of H and N ‘were not all to be blamed for their lack of income which makes a claim for tax credits necessary and possible’. This passage from her judgment highlights the importance of not interfering with value judgments unless they are plainly wrong. In effect, the District Judge held that H’s impecuniosity should not weigh against her because it was the result of the perfectly reasonable way in which she and N chose to live their lives. Conversely, Eleanor King J took the view that H had to accept the consequences of her ‘lifestyle choice’, even though she acknowledged that H’s constant presence, and N’s frequent presence, around the house was an ‘inestimable advantage’ to the children. Given that both of those views are tenable43, the proper exercise of the appellate jurisdiction does not permit the first to be displaced by the second; though, as Arden LJ observed further on in her judgment, the fact that H had chosen that particular way of life would be relevant to quantum; a point which the District Judge had also taken44.

[20] Arden LJ, in a short excursus into the family provision legislation as originally enacted and in its present state, and the recent Law Commission consultation paper45, concluded that parliament had intended that an adult child could make a claim even if it was possible for them to subsist without doing so46, and that the absence of any proposals for change in this area of the law suggested that the present law was not causing problems in practice. Contrariwise, the author would respectfully suggest that the history of Heather Ilott’s application and the strongly divergent views of commentators on the judgments of Eleanor King J and the Court of Appeal indicate that the present law is causing considerable problems in practice.

[21] Black LJ began by considering the conclusion of Eleanor King J that the District Judge had asked himself the wrong question. She commented that para 6447 of his judgment was, and was obviously intended to be, a consideration of the reasonableness of J’s conduct rather than the result produced by her will. Had his judgment stopped there, she would have agreed with Eleanor King J, but in her view, he then went on to set out and to answer the correct question. It is noteworthy that no part of paras 65-67, in which he carried out that exercise, was cited or referred to in Eleanor King J’s judgment. In those paragraphs, DJ Million cited the relevant passages from Re Coventry to the effect that, viewed objectively, the testator’s dispositions or lack of dispositions must lead to an unreasonable result48, and from Espinosa v Bourke49 which (a) identified the difficulties facing an adult of working age and with, or capable of obtaining a job, and (b) rejected any preconceived notion that there is a particularly heavy burden on applicants of full age, and emphasised that all the circumstances had to be considered. His reference to ‘all of the above factors’ in para 67 of his judgment was to the s3(1) factors which he considered at paras 48-63, which in turn drew on the findings which he had made in the earlier part of his judgment about the history and H’s personal and financial circumstances.

[22] She then addressed the argument that on the existing authorities, need alone is not enough and that in circumstances where the only factors in play were the mother/daughter relationship and the daughter’s financial need, Eleanor King J was bound to conclude that it was not open to the District Judge to find that the will did not make reasonable provision for H. She observed that a dispassionate study of the s3(1) factors, however thorough and careful, would not provide the answer to the question whether the will makes reasonable financial provision; s3 provides no guidance about the relative importance of the criteria50.

In a perceptive passage, she said: ‘So between the dispassionate study and the answer to the first question51 lies the value judgment to which the authorities have referred. It seems to me that the jurisprudence reveals a struggle to articulate, for the benefit of the parties in the particular case and of practitioners, how that value judgment has been, or should be, made on a given set of facts. Inevitably, this has led to statements that this or that matter is not enough to found a claim and this or that matter is required.’

The prevailing sentiment is that need is not enough, but, as is rightly observed, bald statements of that kind can be misleading if taken out of context. It may be that one or two factors will, in some cases, exert a magnetic or even a decisive influence on the outcome52 but in truth, there never is only one factor. The applicant’s needs must be viewed in the context of the available resources and the financial position of the beneficiaries. The author shares the difficulty which Black LJ found with the view expressed in Cameron v Treasury Solicitor53 that the devolution of the deceased’s estate to the Crown could not enhance the applicant’s claim and was a neutral factor; if the presence of a needy beneficiary weakens the applicant’s case, the absence of a conventional beneficiary has at any rate the potential to enhance it. Of course, it is clear law that an individual beneficiary does not have to make out a positive case that he needs the benefits which he stands to take under the dispositions on the deceased’s death54, but a study of the decided cases shows that legacies to institutional beneficiaries are not infrequently depleted by the award, it being relevant that, worthy though the causes might be, the testator had no obligation towards the institutions concerned55.

[23] The final section of her judgment is concerned with ‘the search for the elusive feature which tips the balance in favour of this claimant and not in favour of that’. It contains a comprehensive demolition, supported by citations from the leading authorities, of both ‘special circumstances’ and ‘moral obligation’ as candidates for that status. As Sir John Knox said in Re Hancock56, ‘what is not permissible is to use Re Coventry, or any other authority, to establish that any particular factor has to be placed on one side or other of the scales’. There is no room for the ‘gloss’, or for the introduction of principles additional to the plain words of the statute itself. Each case depends upon its own facts and upon how the judge strikes the balance between the s3(1) factors at both stages57.

Further, the value judgment made when that balance is struck at the first stage, of deciding whether reasonable provision has been made, is not lightly to be interfered with58. Black LJ was not persuaded that, in arriving at his value judgment, the District Judge had failed to take into account the relevant s3 factors that had he set out, or that he had given undue weight to the unreasonableness of J’s conduct, or that he had allowed H’s financial need to direct the outcome without putting it into the context of all the circumstances of the case. Eleanor King J was therefore wrong to allow the appeal to her and to substitute her own decision.

What the papers say59

[24] The decision of the Court of Appeal in Ilott v Mitson has provoked three types of reaction. At one end of the spectrum is the view that it is an unwarranted attack on testamentary freedom60. At the centre are those who, without prophesying that the decision foreshadows the end of testamentary freedom as we know it, foresee that the decision will cause problems for will drafters and suggest various methods of attempting to reduce the probability of a 1975 Act claim succeeding61. Finally, while there are no such adulatory comments as greeted the decision on the first appeal, some commentators have recognised, either expressly or by implication, that the decision of the Court of Appeal is unremarkable and within the bounds of existing authority62.

[25] Predictably, the loudest voices of disapproval are from commentators with the interests of charities at heart. The decision is said to have caused ‘public consternation’63, to ‘appear to have demonstrated a willingness within the judiciary to impose its own views of what is right and what is wrong’ and to ‘appear to penalise those who work for their money’. However, the most startling assertion in that article64 is ‘the court has stated that if a person or an organisation named in a will can afford to get by, then that is a reason to rewrite the will in favour of an applicant under the 1975 Act who “needs” the money more’. This appears to derive from a misunderstanding of what Black LJ said in relation to the decision in Cameron v Treasury Solicitor65. Leaving aside the matter of ‘public consternation’, it is surely apparent that, on any dispassionate reading of the judgments of the Court of Appeal, the other assertions are without foundation. Indeed they appear to be fuelled by a sense of moral outrage that a member of the ‘undeserving poor’66 should have been granted a windfall at the expense of truly deserving causes.

[26] The same author asserts in a later article67 that the remarkably clear guidelines provided by Eleanor King J68 ‘can no longer be relied upon following the Court of Appeal’s overturning of the initial ruling’. This is not so. The guidelines remain as reliable as they were before her ruling was overturned, but they are only guidelines to the process by which the value judgment is made. It is precisely because there is no hierarchy of relevant factors and because the weight to be accorded to any given factor depends on all the facts of the case that the guidelines are of very little value in predicting the final outcome. Black LJ is absolutely right when she says69 that ‘a dispassionate study of each of the matters set out in s3(1) will not provide the answer to the question whether the will makes reasonable financial provision for the claimant, no matter how thorough and careful it is’.

Indeed, the author would question whether, in the absence of a statutory hierarchy of factors, a dispassionate study could ever be carried out, for there is no universal equation by which weights can be objectively ascribed to the relevant factors. Why else is the case law replete with references to ‘the wide ambit within which disagreement is possible’ and phrases of a like nature? The reality is, unless there are one or two factors of magnetic or even decisive importance, it will be very difficult to predict whether the value judgment will be in favour of, or against, the claimant.

[27] This is cold comfort for practitioner and client, and, regrettably, the solutions (or, rather, palliatives) suggested in the second group of articles70 referred to in para 24 are unlikely to ward off claims by disappointed beneficiaries, whether emboldened by the decision in Ilott v Mitson or not. The author does not share the view that a ‘no-contest’ clause is a potentially powerful tool71. It will be extremely difficult, in practice, to draw up a will that makes provision for a beneficiary whom, ex hypothesi, the testator would prefer not to benefit, sufficient to discourage them from making a claim, while falling well short of their perceived expectations. And in any case, circumstances may have changed to such an extent between the making of the will and the hearing of the claim that the provision made is adjudged to fall far short of what is reasonable. Nor are written statements ‘admissible from the grave crafted with the s3 factors in mind’ likely to be any more effective. Such statements are hearsay, and their weight is to be determined according to the guidelines contained in s4.2 of the Civil Evidence Act 199572. Statements justificatory of the testator’s dispositions may be viewed by the court as essentially self-serving, so that relatively little weight is attributed to them73, and, as Re Myers illustrates, the court may simply take the view that they are inaccurate74.

[28] Emma Carey’s article ‘Attack on testamentary freedom’ comments on the judgments at all three stages of the Ilott case, and its penultimate section contains advice to practitioners, which does not involve no-contest clauses. Her preferred recipe is to refrain from excluding children altogether and/or to choose beneficiaries with whom the testator has some obvious connection; an alternative is a discretionary trust backed up by a letter of wishes. The emphasis of this more emollient approach is on explaining to the disappointed beneficiaries the reasons for the testator’s dispositions, rather than presenting an unfavourable picture of the disappointed beneficiary to the court. However, her conclusion is that, while the Ilott case may seem a remarkable decision at first glance, the 1975 Act is of its nature an interference with testamentary freedom and all that can be done is to take steps to reduce the likelihood of a claim being mounted.

[29] The case comment by Professor Rebecca Bailey-Harris75 is interesting both for what it says and what it does not say. It approves of the analysis of Re Coventry and the subsequent authorities and of the way in which the role of the appellate court was stated. However, testamentary freedom is not mentioned76 and nothing is said about the difficulties that the decision might cause for litigants and their advisors; though the words ‘each case depends upon how the judge strikes the balance between the s3(1) factors in deciding whether reasonable financial provision has been made in the light of the particular factual matrix’ give a clear warning of the potential difficulties. These are emphasised in the case comment by Ruth Hughes77, which refers to the difficulty in the Court’s articulation of its value judgment and the broad range of outcomes (as illustrated by the judgments of DJ Million and Eleanor King J) at which different judges may arrive on any particular set of facts.

‘I am not in entire agreement with the prediction that Ilott v Mitson is likely to encourage claims by adult children’

The author is not in entire agreement with the prediction that the decision is likely to encourage claims by adult children, particularly if the costs risk is properly explained to them. After all, not only an ‘unmeritorious’78 but even a more ‘meritorious’ claimant might well encounter the wrong judge on the wrong day. However, the author is in entire agreement with the opening comment that ‘there is nothing very new in Ilott v Mitson’. As presaged by the title chosen for this article, it is simply another incremental development of a type familiar in other branches of the law; a particular circumstance has been added to the list (which is never closed) of relevant matters falling within s3(1)(g) for the court to take into account at both stages of the decision-making process.

[30] One final comment: if it is impermissible to gloss the statute by appealing to principles not contained in it79, is not the appeal to the principle of testamentary freedom as impermissible a gloss as any other, and can there be any place for its consideration in the context of a 1975 Act claim? It is true that, in Re Bunning80, Vinelott J said ‘the court should not interfere with [the deceased’s] right to dispose of those assets by his will except to the extent necessary to make reasonable provision for his wife’, but the assets referred to were those which the deceased had built up by his own efforts before the parties married, and, given the way in which the matrimonial law of financial provision has developed, it is doubtful whether a present-day judge would make such a statement in the context of a 1975 Act surviving-spouse claim. The Act lays down no principle of respect for testamentary freedom. It prescribes nothing analogous to the search for ‘the minimum equity to do justice’, which informs the law of proprietary estoppel. The matters to which the court must have regard at both stages of the decision-making process are those within the ambit of s3 of the Act, and no others. With all due deference to Oliver J (as he then was) and the distinguished judges who have adopted his words on the subject, is it not time to accept that invocation of the principle of testamentary freedom is mere rhetoric in the context of a 1975 Act claim and should be abandoned henceforth?

Ross, Inheritance Act Claims – Law and Practice (Sweet & Maxwell, 1st edition, 1993), p1. The prevalence of such behaviour in real life in the 19th century is attested by the anecdotes in chapter XII of Joseph Heighton’s compilation entitled Legal Life and Humour (Hodder and Stoughton, 1916). The chapter is entitled ‘Humours of Famous Lawyers’ Wills – Amusing Bequests of Spiteful Testators’, though the ‘victims’ are mostly wives
Published 1767. The eponymous character is cut off with a shilling and her intended fortune bequeathed to her elder sister
First published in 1949 and since adapted twice for television, in 1980 and 2001
Ilott v Mitson [2011] 2 FCR 1, [2011] WTLR 779, [2011] EWCA (Civ) 346
[2010] 1 FLR 1613, [2010] Fam Law 343, [2009] EWHC 3114 (Fam), also reported as H v M and others [2010] WTLR 193; the section headed ‘The factual matrix’ at paras [12]-[31]. The case will be referred to in subsequent footnotes as H v J’s PRs
This summary of his findings and observations is taken from H v J’s PRs at paras 49-67
Her circumstances are summarised at the beginning of the judgment of Black LJ at para 78 of Ilott v Mitson
Bellenden (formerly Satterthwaite) v Bellenden [1948] 1 All ER 343, CA per Asquith LJ at 345; G v G (Minors: Custody Appeals) [1985] FLR 894, HL per Lord Fraser of Tullybelton at 898G; Piglowska v Piglowski [1999] 1 WLR 1360, HL per Lord Hoffmann at 1372
[1980] Ch 461
Geoffrey Lane LJ regarded the consideration of these two aspects as giving rise to a three-stage approach; 492D
Some 15 years ago, the author had a lengthy and acrimonious argument with a County Court judge and, after the court had risen, with his own solicitor, both of whom were convinced the s3 factors came into play only at the first stage
It was not until Moody v Stevenson [1992] Ch 486 that this test (originally formulated in Re Slyler [1942] Ch 387 at 389, 390) received its quietus, the Court of Appeal holding that the 1975 Act had established beyond doubt that the test was entirely objective
Myers v Myers [2005] WTLR 851
Re Coventry, per Goff LJ 488; and see Re Hancock [1998] 2 FLR 346, CA at 352 per Butler-Sloss LJ
Re Hancock per Sir John Knox at 357; Espinosa v Bourke [1999] 1 FLR 747, CA per Butler-Sloss LJ at 755, referring to the ‘promise’ obligation in that case (to which the trial judge had given insufficient weight) and the moral obligation owed by the testator in Re Goodchild [1996] 1 FLR 591, affirmed [1997] 2 FLR 644, CA
At 755G
Emphasis as in H v J’s PRs, [2010] FLR 1613 at 1627, para 61
At 1630, para 67. She had said at para 65 that his approach ‘came perilously close to allowing necessitous circumstances to be determinative’
At 1630, para 69
[2010] Fam Law (April issue), case comment by Caroline Bridge at 344
Professor Lesley King, Legal update (probate) (2010) LSG 107(10), 14, who commented that adult children had done rather well recently in disputing wills made by parents, and that Eleanor King J’s decision rather redressed the balance; R Sims, ‘Code of conduct’ (2010) NLJ 160 (7413), 525; M Tringham, ‘Intestacy the NSW way’ (2010) NLJ 160 (7413) 539, in which he expressed the novel view that ‘it is the extent of the testator’s right to choose that is under examination (an objective question) rather than the subjective question of whether the testator’s intended beneficiaries deserve their legacies’
But Re Debenham [1986] 1 FLR 404, where the applicant adult daughter could have had no expectation of benefiting from her mother’s estate. She succeeded although her mother never wanted or acknowledged her, left her to be brought up by relatives in South Africa and had left her a derisory legacy of GBP200 out of an estate of over GBP170,000, which the daughter rejected on being notified of it
James Aspden, ‘Redressing the balance’ (2010) TEL&TJ 118, pp14-16. Mr Aspden is a partner in the private client department of Wilsons LLP, who represented the charities
[2005] WTLR 851
The deceased had apparently been known to express the view that ‘an educated woman was a danger to society’
Dew v Clark (1826) 3 Add 79, 162 ER 410 (father’s insane aversion to only daughter); Kostic v Chaplin [2007] EWHC 2298 (Ch), (2007-08) 10 ITELR 364 (testator convinced that family members were implicated in an international conspiracy of dark forces against him); Sharp v Adam [2006] WTLR 1059 (absence of any rational reason for change in the testator’s dispositions, to the disadvantage of his daughters); Re Ritchie [2009] EWHC 709 (Ch) (proof that statements by the testatrix about her daughters were inaccurate; will held invalid on the ground that she was deluded about them)
Fiona Campbell-White ‘A right to spite’ (2011) TEL&TJ 130, pp15-17
This being the usual signifier of a battlefield victory-said, for instance, of King Harold’s defeat of Earl Tostig and the Norwegian Harold Hardrada at the battle of Stamford Bridge on 25 September 1066; though, like the charities, Harold lost the ensuing encounter
Ilott v Mitson, para 59
Per Goff LJ at 487A, Geoffrey Lane LJ at 492F, Buckley LJ at 495H-496A
The first recorded rebuke (in this case to Counsel) for ‘glossing the statute’ appears to have been uttered by Hengham CJ in 1305, the statute in question being the Statute of Westminster II, 1285. R Megarry, Miscellany-at-Law (Stevens & Son, London, 1955), p356
Ilott v Mitson at para 21; and Re Ducksbury [1966] 1 WLR 1226 at 1235, [1966] 2 All ER 374 and 380
At 475D
[1994] Ch 286, at 295E
[1998] 2 FLR 346. The relevant extracts from the judgments of all three judges are set out at paras 27-29 of Ilott v Mitson
[1986] 1 FLR 404
Espinosa v Bourke [1999] 1 FLR 747, per Butler-Sloss LJ at 755; see Ilot v Mitson, para 33
Ilott v Mitson, paras 37-39. The argument has been rearranged and summarised
At 475C-D; the passage is quoted in H v J’s PRs [2010] 1 FLR 1613, at 1622, para 45. Also Ilott v Mitson, paras 44-45
Ilott v Mitson, paras 52-53
Set out in the judgment of Wall P at para 44; his emphasis added
Ilott v Mitson, paras 61-76, the value judgments referred to are stated at para 67
As Black LJ said, the conclusion that Eleanor King J reached was meticulously reasoned and well within the ambit of decisions that were open to her and would not be vulnerable to the attentions of this court; Ilott v Mitson, para 79
Ilott v Mitson, para 73, and H v J’s PRs at para 63
Consultation Paper 191 on reform of the law relating to intestacy and family provision. In fact, consultees were asked, at paras 5.19 and 8.22, to address the question whether the 1975 Act should be amended to give children a greater chance of success and, if so, how
Under the Inheritance (Family Provision) Act 1938, the only adult children who could apply were those physically or mentally disabled from maintaining themselves. Married daughters under 21 were also ineligible
The paragraph is quoted in full at para 6 of this article, and Eleanor King J’s criticism of it is at para 9
[1980] Ch 461, per Oliver J at 474G-475A (not 495E as printed in para 82 of the judgment of Black LJ)
[1999] 1 FLR 747, per Butler-Sloss LJ at 755G, Aldous LJ at 760G; and see the judgment of Wall P at paras 34 and 36 of Ilott v Mitson
Re Hancock [1998] 2 FLR 346, per Judge LJ at 355, and H v J’s PRs, at para 49(iii)
Viz, whether the dispositions of the will or the law of intestacy make reasonable provision for the applicant
See H v J’s PRs at para 49(iii) and the analogy there drawn with ancillary relief applications
[1996] 2 FLR 716
For example, Re Clarke [1991] 21 Fam Law 364
Thus in Re Besterman [1984] Ch 458, CA, Oliver J said at 464H-465A ‘[the deceased] had formed a very close association with Oxford University… [but] it could not be said that he owed the university any duty, much less a duty which could reasonably be thought to override the very real obligations which he owed to his wife’. Also Milward v Shenton [1972] 1 WLR 711 (entire estate left to the British Empire Campaign for Cancer Research; disabled son awarded 11/12ths of the net estate); Re Bunning [1984] Ch 480, award of GBP60,000 to surviving spouse to fall on the 80 per cent of residue given to Cambridge University and then rateably on the pecuniary legacies to Cambridge and the RSPB)
[1998] 2 FLR 346, at 358B
Re Coventry [1980] Ch 461 per Geoffrey Lane LJ at 493D, G; Re Hancock [[1998] 2 FLR 346 per Butler-Sloss LJ at 353H and Sir John Knox at 357A; Espinosa v Bourke [1999] 1 FLR 747 per Aldous LJ at 760D
Re Coventry, per Goff LJ at 487B, Geoffrey Lane LJ at 492D, Buckley LJ at 495H; Re Hancock, per Butler-Sloss LJ at 353H; Espinosa v Bourke, per Aldous LJ at 759A
A television programme which ran from 1956 to 2008
James Aspden, ‘Is your last will and testament worth the paper it’s written on?’, The Times, 21 April 2011; ‘Thwarted Desire’ (2011) L.Ex (Aug), 36; ‘Last rites’ (2011) Private Client Adviser, 16(7), 18; Mr Aspden’s views are also given some coverage in the case comment ‘Appeal judges back daughter in provision battle’ (2011) SJ 155 (14), 5. Also Sarah Clune, ‘Update on charity law’ (2011) SJ 1555 (25) (Charity and Appeals Supplement) pp9, 11, 13, 14, which appears to express disapproval of the decision, as it refers to the Court of Appeal having allowed H to continue her claim despite J’s clear instructions to her executors to defend any claim brought as she could see no reason why H should benefit from her estate
Lloyd Junor ‘Keeping the peace’ (2011) 155 SJ 21; District Judge Stephen Gold, ‘To Hell with Morality’ (2011) NLJ 161 (7461) 701; John Hyde ‘Will ruling opens way for family claims’ (2011) LS Gaz 6 May 4(3); H Bryant (2011) 155 SJ (27), 27; Paul Colman, ‘Tha’ gets nowt’ (2011) Tr & Est (June), 7-8
Emma Carey, ‘Wills – an attack on testamentary freedom?’ (2011) TELT&J 127, p4; [2011] Fam Law 798 (case comment by Professor Rebecca Bailey-Harris); [2011] Eld LJ 242 (case comment by Ruth Hughes)
The author has searched a representative selection of comments on the internet. Very few lawyers consider the decision particularly remarkable and the adverse comments from the general public are more to do with the fact that the family was in receipt of state benefits than with the court’s power under the 1975 Act to override the provisions of a will
James Aspden, ‘Is your last will and testament worth the paper it’s written on?’; n60
Discussed at para 22, above
Perhaps the most famous of whom is Eliza Doolittle’s father, Alfred, who so describes himself in Pygmalion, Act II, l.255 et seq. ‘I’m one of the undeserving poor, that’s what I am. Think of what it means to a man. He’s up against middle-class morality the whole time. If anything’s going, and I put in for a bit of it, it’s always the same story: “You’re undeserving, so you can’t have it”.’ This quotation is not inapposite in view of the attitudes referred to in n63
‘Last rites’ (2011) Private Client Adviser, 16(7), 18, at p20
H v J’s PRs [2010] 1 FLR 1613, at para 49
Ilott v Mitson, para 88
Articles by Lloyd Junor and by H Bryant cited at n51
Particularly paras (b), whether the original statement was made contemporaneously with the occurrence or existence of the matters stated; (d), whether any person involved had any motive to conceal or misrepresent matters; and (e), whether the original statement was made for a particular purpose
For example, Singer v Isaac [2001] WTLR 1045 (four memoranda by husband regarding the state of his marriage not found to justify the relatively small provision made for his wife by his last will)
[2005] WTLR 851. The case is discussed at paras 13-14, above
[2011] Fam Law 798
Compare the case comment on Eleanor King’s decision by Caroline Bridge at [2010] Fam Law 344
[2011] EldLJ 1(3), pp242-43
n63. Is a family, three-quarters of whose income is derived from state benefits, thereby to be numbered among the ‘undeserving poor’? The Court of Appeal did not appear to think so: in particular, Arden LJ at para 75
Black LJ at para 95
[1984] Ch 480, at 499A


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