Charity legacies and the importance of testamentary freedom


24 March 2017

The outcome of Illott v Mitson - Many charities rely on the generosity of benefactors who choose to donate during their lifetimes or after they die or both.

Many charities rely on the generosity of benefactors who choose to donate during their lifetimes or after they die or both. So, for charities and benefactors alike the case of Illott v Mitson has been of great concern, as it called into question the importance of testamentary wishes when a person chooses to leave a substantial amount to charity whilst cutting children out of their will.

The case made it all the way to the Supreme Court and the outcome of the case has been anxiously awaited, as we discussed in our previous article. The concern has been that, if the Supreme Court upheld the decision of the Court of Appeal, this might result in a surge of claims against estates where substantial sums have been left to charity.

The long awaited judgment was finally handed down by the Supreme Court on 15 March 2017, and will provide comfort to many charities and those who wish to leave legacies to charities. The Supreme Court reversed the decision of the Court of Appeal and endorsed the importance of testamentary wishes.

The Supreme Court stated that the claims of the charities were not on a par with that of the disinherited daughter (Mrs Ilott), but rather they were ranked higher as ‘fundamentally these charities were the chosen beneficiaries of the deceased.' They also acknowledged that ‘charities depend heavily on testamentary bequests for their work, which is by definition of public benefit and in many cases will be for demonstrably humanitarian purposes.’ The charities would suffer if Mrs Ilott received any sum from the estate and that had to be taken into consideration. 

Although there remains a lack of consistency in this area of law, and any claim made against an estate will always need to be considered on its individual merits, the importance placed on testamentary freedom in this case will be welcomed by charities who rely on the generosity of their benefactors, and will give great comfort to those who wish to leave their estate to charity.
For full facts and details about the case, please see our case report.

Our specialist Charities and Social Enterprise Team advises on all aspects of charity law and regulation, including contested legacies. If you have any questions or concerns about a legacy left to your charity, please get in touch with Bernadette Baker or Marie McMahon or another member of our team.