You might think that the freedom of a person to dispose of his or her assets by Will is, or ought to be, sacrosanct. In England and Wales, as opposed to many European jurisdictions and jurisdictions further afar, this is largely the case.
The Inheritance Act 1975
That freedom exists in England and Wales, save that certain parties (primarily the spouse) but also children and those who have been maintained by the deceased (see below) may apply to the Court under the Inheritance (Provision for Family and Dependants) Act 1975 (“the 1975 Act”) to be awarded a part of the deceased’s estate in the absence of their having been so provided under his/her Will. Essentially, under the 1975 Act, the Court may award a spouse (or someone in similar circumstances) an amount which it considers to be reasonable provision for their maintenance or otherwise and in respect of other qualifying applicants (see below) the Court may make an award in their favour so far as is necessary with regard to reasonable provision for their maintenance alone. As appears from the judgment that follows, the Court finds the determination of ‘maintenance’ and ‘reasonable provision’ for such ‘maintenance’ to be difficult to determine and there are conflicting views.
Ilott v The Blue Cross & Others
In Ilott v The Blue Cross & Others  UKSC 17, the application of the 1975 Act came before the Supreme Court, the highest Court in England and Wales, for the first time. The claim was brought by the daughter of the deceased Mrs Jackson, namely Mrs Ilott, who had been estranged from her mother for 26 years. Her mother had determined as early as 1984 that she was not going to leave anything to her daughter who had chosen her own way of life.
The daughter, Mrs Ilott, lived in straightened financial circumstances. She applied under the 1975 Act for reasonable financial provision to be provided for her out of her mother’s estate, notwithstanding that her mother had made it clear since 1984 that she was not to receive anything and that her mother was to leave her estate to charities. A District Judge determined that Mrs Ilott should receive £50,000 as a reasonable provision for her maintenance. The Court of Appeal increased that award to £143,000, with an option to receive a further £20,000 in one or more instalments.
The Supreme Court
The Supreme Court unanimously overturned the Court of Appeal’s Judgment. They said that the Court of Appeal had been wrong in determining that the District Judge had erred in law. There is no objective standard of reasonable provision for maintenance – the parties’ behaviour and other considerations set out in the 1975 Act needed to be weighed in the balance; maintenance implies provision to meet everyday expenses of living and nothing more; the testator’s wishes in making the Will are relevant. Yet, the Supreme Court was left with no option other than to allow the District Judge’s award to stand (i.e. £50,000 to Mrs Jackson) because they could not interfere with a judgment decided upon evidence which was clearly within his discretion.
In the Supreme Court Lady Hale criticised the 1975 Act and we concur with her criticisms. Lady Hale said that there was no guidance as to how the Court should approach an application by an adult child for reasonable provision for his/her maintenance. One wonders why a person estranged from her mother for twenty six years might be able to benefit from her estate solely on the basis that she was a daughter, when her mother had made clear for over twenty years that she was not going to benefit.
The 1975 Act permits claims to be brought against the estate of a deceased by: a spouse or civil partner; a former spouse or civil partner; a child of the deceased; a person treated as the child of the deceased; or a person ‘maintained’ by the deceased.
As mentioned above, a spouse or former spouse is entitled to reasonable financial provision whether for their maintenance or otherwise. The other potential applicants are entitled to reasonable financial provision for their maintenance, as determined by the Court.
Our advice is that if you consider that there may be a risk that someone may apply under the 1975 Act in relation to your Will on the basis that they have not been reasonably provided for, you must explain the circumstances and set out the history of the relationship before executing your Will or perhaps even divest of part of your estate in advance.
Author: Will Twidale