The Court of Appeal has handed down an interesting judgment on challenges to wills…
Section 1 of the Inheritance (Provision for Family and Dependants) Act 1975 confers the right on, among others, a child of a deceased person in England and Wales to apply for an order under section 2 of the Act if the will of the deceased or the intestacy rules do not make reasonable provision for him or her, while section 1(2)(b) provides that, in the case of a child, “reasonable financial provision” means ”such financial provision as it would be reasonable in all the circumstances of the case for the applicant to receive for his maintenance” [emphasis added]. The provision is therefore limited to awards of maintenance – which is not the case for awards under the 1975 Act for spouses or civil partners. Section 2(1) of the Act empowers the court, if satisfied that the disposition of the deceased’s estate does not make reasonable financial provision for the applicant, to make an order for periodical payments to the applicant out of the net estate and/or payment of a lump sum.
In Ilott v Mitson & Ors  EWCA Civ 797 the appellant, Mrs Ilott, was the 46-year-old estranged daughter of Mrs Melita Jackson, who died in 2004 leaving a will by which, apart from £5,000 for the BBC Benevolent Fund, she left her entire estate of some £486,000 to be divided between The Blue Cross, the RSPB and the RSPCA. Mrs Ilott, her only child, knew that her mother intended to cut her off without the proverbial penny: however, she challenged the will and in 2007 DJ Million made an award of £50,000 in her favour. She thought that that was insufficient; and in March 2014 Parker J dismissed her appeal from DJ Million’s order.
The issues in the appeal were whether or not DJ Million’s order should have been set aside for error and if so – and if the Court of Appeal decided to re-exercise the discretion –whether reasonable financial provision could and should be made for Mrs Ilott’s maintenance which relieved her everyday living expenses without affecting her state benefits. The Court of Appeal (Arden and Ryder LJJ and Sir Colin Rimer) concluded unanimously that it should re-exercise the discretion in her favour:
“… this is a case where the court can and should make reasonable financial provision out of the deceased’s estate for the appellant’s maintenance so that her living expenses are relieved without affecting the state benefits on which she relies” [45, per Arden LJ].
It awarded her £143,000 to purchase a property and a capital sum not exceeding £20,000 in order to purchase an annuity to supplement her income.
According to the BBC, the three charities made a joint statement in which they said that they were “surprised and disappointed” by the judgment. Their solicitor said that it was a “worrying decision for anyone who values having the freedom to choose who will receive their property when they die”. To which the short answer is that testators in England and Wales do not have that freedom, untrammelled – nor have they had it for the last forty years. (And they have never had such freedom in Scotland, where the law of succession is very different.)
For charities that rely heavily on legacies for their income, however, it raises the issue of the extent to which they should resist such challenges and how far they should take proceedings. It seems to me that there are two conflicting issues here: on the one hand, charities need legacy income while, on the other, there may be a reputational risk for the sector if charities are perceived to be challenging wills too vigorously. And it’s a very difficult balance to strike.
So what (I hear you wondering) has any of this to do with law and religion? Well, the first – obvious – point is that religious organisations in England and Wales are almost invariably charities and are just as anxious as their secular counterparts to secure legacy income. But the second is less obvious: to what extent do testators owe a moral duty to support their adult children? If a man leaves his wife and small children, disinherits them and is promptly killed in a car crash, presumably no-one would argue with the proposition that due provision should be made for them out of his estate. But does one have any kind of moral duty of care to a 46-year-old from whom one has been estranged since she was seventeen?