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Ilott, the Adult Claimant and the Inheritance Act

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Simon Calhaem looks beyond the headlines to examine the impact of the recent decision in Ilott v Mitson on adult provision in Inheritance Act claims


  • Simon Calhaem, 29 Bedford Row

    It has been widely reported that the Court of Appeal decision in Ilott v Mitson [2015] EWCA Civ 797 broke new ground in permitting Inheritance Act Claims for adult children. However the decision made by DJ Million (as he then was) in the original proceedings on 7th August 2007 had already ploughed that particular furrow, and having found that no provision for the Claimant was not reasonable financial provision made an award of £50,000. 

    The Court of Appeal's task was (for reasons explained below) to re-exercise that discretion on a more generous basis and provided the claimant with £143,000 to acquire a property, and what was unprecedented and could represent a shift in current thinking is the extent of the generosity.

    The Facts
    The deceased died in 2004 leaving an estate which had been valued before DJ Million of £486,000 which was divided between a number of charities. Her estranged daughter, Heather Ilott, received nothing under the will. DJ Million held that the Claimant was obviously under "straitened and needy financial circumstances" and that it was unreasonable to have made no financial provision at all. He held that the Claimant had no expectation that she would receive anything and that meant that any provision must now be limited. He assessed the award of £50,000 as capable of generating a few thousands of pounds a year, a figure with "a significant degree of approximation in it".

    The proceedings then undertook a somewhat circuitous route to the Court of Appeal. DJ Million's decision was appealed to the High Court (Eleanor King J) who set aside the decision. The decision of King J was successfully appealed by the Court of Appeal at [2011] 2 FCR 1 (Sir Nicholas Wall P, Arden and Black LJJ) which allowed an appeal against the order of King J, but remitted the appeal against quantum back to the High Court. That was the appeal that was dismissed by Parker J which led to this: the second appearance in the Court of Appeal.

    The issues for determination were not then whether the District Judge had been right to hold that no provision was not reasonable financial provision (the first stage) but on his quantification (upheld by Parker J) that £50,000 was reasonable financial provision.    

    DJ Million was held to have erred in two important respects:

    • Having concluded that the factual matrix necessitated that the claim be "limited" he had not (as he was required) gone on to explain how he had limited the award to reflect those matters he considered relevant. In essence he had failed to comply with his duty as set out in  Flannery v Halifax Estate Agencies [2000] 1 WLR 377 (although this was not cited in the judgement). Henry LJ (handing down the judgement of the court) said at 881F:

    "We make the following general comments on the duty to give reasons.

    (1) The duty is a function of due process, and therefore of justice. Its rationale has two principal aspects. The first is that fairness surely requires that the parties especially the losing party should be left in no doubt why they have won or lost. This is especially so since without reasons the losing party will not know (as was said in Ex parte Dave) whether the court has misdirected itself, and thus whether he may have an available appeal on the subject of the case. The second is that a requirement to give reasons concentrates the mind; if it is fulfilled, the resulting decision is much more likely to be soundly based on evidence than if it is not.

    (2) The first of these aspects implies that want of reason may be a good self-standing ground of appeal. Where because no reasons are given it is impossible to tell whether the judge has gone wrong on the law on the facts, the losing party would be altogether deprived of his chance of an appeal unless the court entertains an appeal based on lack of reasons itself. 

    (3) . . .where the dispute involves something in the nature of an intellectual exchange, with reasons and analysis advanced on either side, the judge must enter into the issues canvassed before him and explain why he prefers one case over the other."

    The duty to give reasons is not merely for appearances sake. The duty to give reasons goes to the heart of the judicial function; not only does the provision of reasons allow the parties to assess the quality (or otherwise) of the judicial conclusion but the discipline required actually affords some protection against judicial error- in the words of Henry LJ in Flannery "the requirement to give reasons concentrates the mind"

    • The second of DJ Millions "fundamental errors" was that he had failed to properly consider the effect of the award on the Claimant's state benefits. He made a working assumption that a "large capital payment" would disentitle the family to most if not all of their state benefits, whilst in reality even the £50,000 would have had that effect and so the logic of his reasoning was incomplete. 

    As such the Court of Appeal went on to exercise discretion afresh. The charities prayed in aid (again) the estrangement. At paragraph 51 (v) Lady Justice Arden dealt with the argument in the following manner:

    "First, although DJ Million found that she was partially responsible for the failure of the attempts at reconciliation, there is no suggestion that she wanted to be estranged from Mrs Jackson. Second, while she may not have made the choices in life that her mother though were necessary for her to make a success of her life, she had made a success of her life in other ways through being a mother and homemaker. Third, not only may it be difficult to apportion fault here but there may not have been fault on anyone's part. Estrangement may simply have been the result of Mrs Jackson's inability to make lasting relationships with anyone. . ."

    In dealing with "expectation benefit" and the deceased's connection with the charities at (iii):

    "It would be contrary to public policy if claimants had to prove expectation as this might encourage some undesirable conduct by prospective claimants. 

    For my part, I do not think that this factor has much weight in this case. The only beneficiaries are the Charities, who can have had no expectation either: the deceased had no connection with the Charities. The appellant, on the other hand, was the only child of the deceased, and she was deprived of any expectation primarily because Mrs Jackson had acted in an unreasonable, capricious and harsh way towards her only child."  

    So it would seem that the Court of Appeal were prepared (in 2015) to be more generous than DJ Million (in 2007) and the extent of this generosity does demonstrate a willingness to narrow the distinction between that provision which would be reasonable merely for maintenance and the unbridled award for a spouse claimant to all but nothing. Similarly generous decisions have been made in recent years in favour of Cohabitee Claimants (see Negus v Bahouse [2008] 1 FLR 381) and whilst the Law Commission had considered whether or not to remove the maintenance limitation (and decided against on the basis that judicial discretion was already being exercised suitably generously) no such proposition was tabled in respect of the adult child class. This class of claimant has always (since Oliver J in Re Coventry) proved troublesome, a point best summarised by Butler-Sloss LJ in Espinosa v Bourke [1999] 1 FLR 747 where she said:

    "There may have been some confusion in the minds of trial judges that the appellate court was placing a gloss upon the words of the section, and putting some special emphasis upon the requirements of subs (1)(d) so as to elevate moral obligation or special circumstance to some threshold requirement. From the judgments of this court in Re Coventry to the present day, it should be clear that no gloss has been put upon subs (1)(d). An adult child is, consequently, in no different position from any other applicant who has to prove his case. The court has to have regard to s 3(1)(a)–(g) and assess the relevance and the weight to be given to each factor in the list. If 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 scales. As Oliver J pointed out in Re Coventry, necessitous circumstances cannot be in themselves the reason to alter the testator's dispositions. The passage from the judgment of Sir John Knox in Re Hancock (above) is, in my respectful view, particularly helpful to remind us of the right way to approach this class of case under the Act."

    It is not then that the adult claimant has to prove a "moral obligation" nor that he or she has a more difficult legal test to pass than any other class of claimant, but that the circumstances of the adult claimant are likely to mean a greater ability to contribute to their own needs as an independent adult and as such a lower likelihood that less (or no) provision by the deceased might be considered a failure to provide reasonable financial provision. If their circumstances are so strained (in combination with the other factors in s3) that "reasonable financial provision" has not been made then the court can assess what is reasonable accordingly, including it would seem, even to the extent of a lump sum for the provision of housing. The seed sown in 2007 has by 2015 legitimately grown into a secure roof over Heather Ilott’s head.


Published: 04/09/2015

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