Drafting wills after Ilott v Mitson

Theoretical testamentary freedom was significantly restricted 40 years ago when the Inheritance (Provision for Family and Dependants) Act 1975 gave children and some others rights to make claims for 'reasonable financial provision' from an estate.

The Court of Appeal's
second decision in Ilott v Mitson (2015) EWCA Civ 797 has
caused some consternation as
it seemed, to many solicitors, an unreasonable extension of the constraints.

The case of Mrs Ilott seemed
a poor one. Estranged from her mother, the deceased Mrs Jackson, for 30 years, with attempts at reconciliation failing, Ilott was a daughter who had apparently chosen to elope, leaving home to marry at 17
and living an alternative lifestyle.

Ilott was initially given only £50k from an estate of £484k. The first Court of Appeal hearing decided it was unreasonable provision for the adult child,
and remitted the case to the High Court, which then upheld the figure. On appeal, that was increased to £164k, so that the daughter's living expenses were relieved without affecting the state benefits on which she relied. This sum enabled Ilott to buy her home, with a small sum to provide income.

The Court of Appeal sought
to balance the deceased's testamentary wishes with its statutory power to ensure reasonable financial provision was made for maintenance only. The basic level of the daughter's resources outweighed the importance that would
normally be attached to the fact that, as an adult child, she'd lived independently for many years. The court decided Jackson had acted in 'an unreasonable, capricious and harsh way towards her only child'.

Lessons to learn

• If leaving a major part of an estate to charities, record the reasons for choosing them, any contributions to their work, or any particular reason for supporting the cause (e.g. loved ones helped by the charity or to help others who may have similar needs in future). Significantly, Jackson had no particular connection with the three charities she named to share her estate. It is perhaps a new concept that the historical support of a charity beneficiary needs recording, but in learning the lesson we need to record as much detail as possible in case of any challenge;

• If family relationships have broken down, avoid appearing spiteful or vindictive, and set out the detailed reasons for making no (or limited) provision for those who might expect to benefit. What was the background to any breakdown in the relationship? What steps did the client take to make contact and with what response? The court found there was no evidence Ilott wanted to be estranged from her mother;

• Get supporting statements from witnesses: is there any evidence others might provide to help show why the client made the will she did? By definition, when a dispute arises after death, the chief witness is not around, so getting a statement signed by the client is invaluable. However, witnesses may also be unavailable, or may prefer not to give evidence, so acquiring signed witness statements also helps; and

• Obtain reasoning in cases where less than equal provision for children is made. One problem was the need for an explanation as to why the deceased made her will, even though she left a side letter.
  In most cases families would expect children of equal relationship to receive equally, without good reason otherwise. Often there is good reason, but
  is it recorded properly? Have lifetime gifts for one child been fully detailed? Often families conveniently forget details, sometimes even genuinely so.

If extra gifts reflected specific needs, those should be explained in a signed note, together with comment on
any effect on the estate's division. If a £100k gift means an equivalent payment to siblings, is it of the same amount (even if years later), or increased for inflation and the other's use
over the years? Perhaps just as importantly, if, notwithstanding
a gift made, that child is still to have equal shares, affirm that with reasons. Did the child have personal needs that justified extra provision over and above their siblings?

Understanding why the deceased made their will as
they did, their reasoning, and conclusions as to what was
right may be enough to stop a disgruntled beneficiary from making a claim, though clients should always be made aware that claims cannot be prevented, and that there is no substitute for proper explanations in signed statements which the court can take into account. Such steps can help secure the testator's wishes and deflect any criticism of your drafting. SJ

John Bunker  is head of private client knowledge management at Thomas Eggar @ThomasEggarLLP