Posted: Friday, 4 January 2019 @ 13:43
The Ilott case has been decided and it is worth considering
some of its implications. Here are some thoughts.
The Case Does Not
Totally Support Testamentary Freedom
Contrary to some initial press reports
said, the case does not re-inforce
complete testamentary freedom. It is worth remembering that the deceased left nothing
in her will to the daughter, Ms Illott, and the Supreme Court whilst allowing the
charities appeal re-awarded her £50k to her which was one third what the Court
of Appeal gave her. Given this, any disinherited child of the deceased (as
in this case) has the potential to claim something on an estate even if they
have what would look like weak grounds. The floodgates for disinherited
children remain partially open though a key tenet of this case was that Ms Ilott was destitute.
Remember The Key Inheritance 1975
Act Factors Are Broad
It is worth
reminding us of some of the original legislation namely the Inheritance
(Provision for Family and Dependants) Act 1975 (“the 1975 Act”). Here the Court needs to look at the financial
resources and financial needs which the applicant has or is likely to have in
the foreseeable future, the financial resources and financial needs which any
other applicant for an order under any obligations and responsibilities which
the deceased had towards any applicant. In addition, it is worth noting that
the Court can look at the conduct of the applicant or any other person, which
in the circumstances of the case the court may consider relevant. The conduct of everyone was clearly looked at in the Ilott judgment.
This Case Reinforces
The Lack of Clarity Of the Law
One of the judges on the case, Lady Hale,
has done an extreme service in showing the lack of clarity of law.
Hopefully(and this is more in hope than expectation) the legislators will
react. As she writes in the judgment
about the differing variables in the 1975 Act “The problem with the present law
is that it gives virtually no help in deciding how to evaluate these or balance
them with other claims on the estate.“ She also goes on to ask how then is a
court to “distinguish between the deserving and the underserving” (she cannot
really answer) and concludes that the present state of the law is “unsatisfactory.”
We have a legal vacuum.
So What are the Key
Things That Would be Litigants Can Do?
Fundamentally when you have an open legal framework like this the key
for the parties (e.g the testator pre death), the executors (post death) and
the applicant and his or her lawyers (pre and post death) is to manage their
conduct and make sure that all their steps appear reasonable and good after the
event, as a judge is going to scrutinise everyone’s conduct carefully and have
to make a value judgment on the case balancing all the needs of the parties. Specifically
this means for example – the testator perhaps
being more inclined to make provisions in the will to the estranged child on the
basis the would be Claimant does not contest the will/ the applicant’s being
more assertive in seeking to mediate cases/show the closeness of his/her relationship
to the deceased while alive/make sensible and possibly open (not without prejudice) offers. Essentially conducting the (would be) litigation
even prior to death is critical and more omnipotent than before.