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Reasonable Financial Provision for Disinherited Adult Children and the Need for Reform

on Friday, 21 April 2017.

The case of Ilott V The Blue Cross And Others [217] UKSC 17 is unprecedented as it is the first claim made under the Inheritance (Provision for Family and Dependants) Act 1975 (the Act) that has reached the Supreme Court.

Whilst it is a landmark decision in this respect, it has not changed the existing law and Lady Hale, in particular, indicated the need for reform in this area of law.

Background

Given how widely reported this case has been, the background details are well known, but in summary:

  • Heather Ilott was not included in her estranged mother's Will which left her entire £500,000 estate to three animal charities
  • Heather Ilott was awarded £50,000 by the first instance judge in the High Court
  • The Court of Appeal raised this award to £143,000 to buy a house with an additional £20,000 top up and
  • On 15 March 2017, the Supreme Court upheld the first instance judge's decision.

The basic test remains that a claimant under the Act must show what is reasonably required by them for their ongoing maintenance. The Court has retained its wide discretion of award making and Lady Hale at paragraph 65 set out the three possible judgments that could have been reached. The Supreme Court indicated that as long as a judge goes through the procedure and reaches a logical conclusion, his decision is likely to be sound.

Whilst the Judgment provides useful clarity over what constitutes maintenance, it has not changed the law.

Reform

Of particular interest in the Judgment are Lady Hale's comments as she explains the need for reform and heavily criticises the current law and the Law Commission for providing no guidance on what factors are relevant when considering whether an adult child deserves reasonable maintenance or how to evaluate these claims against other claims under the Act (see paras 58 and 66).

The fact that the Supreme Court explained that there were three different conclusions which the first instance Judge could reasonably have reached demonstrates the uncertain practical difficulties that claims under the Act face. Lady Hale explained at paragraph 58 that various studies have shown that there is a "wide range of public opinion" about when adult children should be entitled to bring a claim under the Act. This wide range of opinion may also be shared by the judiciary and therefore, where the present law does not provide any further guidance, these differing opinions will impact on decisions.

Testamentary freedom is an important principle in English law and this has been particularly clear in a string of recent court decisions which have dismissed Will challenges on grounds such as lack of knowledge and approval, undue influence and lack of testamentary capacity.

The underlying principle of the Act is to aid disinherited descendants who would usually have no entitlement, but without guidance as to how these rules are to be interpreted and implemented, the judiciary, as Lady Hale stated, are able to exercise wide ranging discretion to provide for these individuals. Perhaps, following Lady Hale's criticism, the Law Commission may decide to release another consultation on reforming this area of law as this landmark case has not made it any easier to advise clients as to their prospects of success.

The Commission has previously considered whether claims should be limited to adult children who are dependent on the deceased, but this was rejected and, as Lady Hale has pointed out, no further guidance was given as to who should be considered as deserving. This contrasts to the approach taken by the Matrimonial Causes Act 1973 which prevents a financial provision order being made in favour of any child who has attained the age of eighteen, except for special circumstances.

This decision has not clarified in what circumstances an adult child is likely to be successful in a claim under the Act, nor has it made it easier for a parent to disinherit a child. It is possible to make it harder for a child to make a claim, through the drafting of your Will, but you cannot opt out of the Act.

For specialist advice in this area, please contact Julia Hardy on 0117 314 5632 or Michelle Rose on 0117 314 5264 from our Private Client team.

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