The Law Commission published its report on Technical Issues in Charity Law in September 2017 following a public consultation.
In brief, Mrs Jackson and her only child, Mrs Ilott, had been estranged since Mrs Ilott moved out of their home in 1978, aged 17. Mrs Jackson had raised Mrs Ilott alone, since Mr Jackson had died three months before Mrs Ilott’s birth. Mrs Ilott moved out to live with her future husband, with whom she subsequently had five children.
Despite some attempts by the parties to repair their relationship over time, they remained estranged. While both sides share the blame for the failures, Mrs Jackson was described as having acted in “an unreasonable, capricious and harsh way” toward Mrs Ilott. Mrs Jackson then died leaving a Will by which she left a small legacy to the BBC Benevolent Fund and everything else between the Blue Cross, the Royal Society for the Protection of Birds and the Royal Society for the Prevention of Cruelty to Animals. It should be particularly noted that Mrs Jackson did not have any connection with these charities during her lifetime. Mrs Jackson left nothing to Mrs Ilott and made it clear in documentation that she did not want Mrs Ilott to inherit anything due to the estrangement. Mrs Jackson’s estate was worth in the region of £486,000.
Mrs Ilott brought a claim against her mother’s estate for reasonable financial provision, on the basis that she believed that it would have been reasonable for Mrs Jackson to have left her something and that she needed the inheritance for her maintenance. After a number of hearings, ultimately the court found in Mrs Ilott’s favour – that the Will did not make reasonable financial provision for her – and made her an award of £50,000. It should be noted that the case being discussed this week was an appeal by Mrs Ilott against the amount of this award, the decision that she should be provided for from Mrs Jackson’s estate had already been made. Mrs Ilott went back to court and achieved a higher award, sufficient to buy her home from the housing association from which she and her husband rented and an additional financial award, totalling approximately £163,000.
Courts have had the power to change the terms of a Will for many years – the Inheritance (Provision for Family and Dependants) Act 1975 was seen by many as a watershed moment in the erosion of testamentary freedom, i.e. the freedom to leaves one’s estate as one wishes. What seems to have raised eyebrows in this case is that, despite the degree of estrangement between mother and daughter, the clear wishes of Mrs Jackson and the fact that Mrs Jackson had not provided for Mrs Ilott during her lifetime, Mrs Ilott was still given a very substantial award, amounting to around one third of the value of the estate.
There are a huge number of factors that the court is entitled to consider in cases such as this. Estrangement – and the fault for such a breakdown in relationship – is merely one of them and has been considered in numerous cases. The weight that a court will attach to this issue depends very much on the circumstances of the case.
Here, despite some blame being attached to Mrs Ilott and her husband, it was found that Mrs Jackson was predominantly at fault for the breakdown in the relationship and that her preconditions for reconciliation were unfair. In effect, the unreasonableness of Mrs Jackson’s behaviour toward her daughter in lifetime culminated in an unreasonable failure to leave Mrs Ilott anything on death.
Other cases have been consistent with this case. Others still have involved claimant children who have behaved in such a fashion toward their deceased parents, that a court has decided to dismiss their claim for provision when disinherited on the basis that an estrangement was deemed to be their fault. What can be seen is that this case has re-emphasised certain points of law, rather than radically changing anything – but any such judgment will of course spark the public imagination, as no-one likes to think that their strongly held opinions and beliefs, especially when set down in a Will, can be set aside.
So where does this leave us? It is always good practice to ensure that a testator considers carefully all of the people who might typically benefit from their estate, notwithstanding any fallings out or disagreements. If they choose not to leave anything to such people, they should consider carefully why not and illustrate why this should be.
This did not help Mrs Jackson of course, which brings us on to another important point – that testators should carefully consider why they have excluded someone from their Will and who has caused any related dispute. It may of course be that such a dispute is the fault of the excluded individual and that the testator feels satisfied that this can be demonstrated. If this is not the case, however, the testator will have to either accept the risks of excluding the individual, or perhaps help their intended beneficiaries avoid the cost and stress of litigation by making some provision for the individual in question. It is worth at least considering.
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