How have the courts been acting post Ilott v The Blue Cross and others?

23 August 2017

The Supreme Court decision of Ilott v The Blue Cross [2017] UKSC 17 was heavily reported and analysed as it was the first case relating to the Inheritance (Provision for Family and Dependants) Act 1975 (1975 Act) (and its predecessor, the 1983 Act) to reach the Supreme Court. However, the big question is how have the courts been applying the 1975 Act post such an important decision?

In Nahajec v Fowle [2017], the County Court of Leeds faced the issue of an adult beneficiary making a claim on the estate of her father, of whom she had been estranged. The facts were similar to that of Ilott v The Blue Cross in that the estrangement was seemingly caused by the unreasonable behaviour of the deceased, and that the claimants were both in relatively poor financial circumstances.

In this case, the claimant had tried to make contact with her father on a number of occasions but he was both resistant and hurtful towards her. The claimant had two part time jobs; one in retail and one in a veterinary surgery. It was her aspiration to become a qualified veterinary nurse and to do so she would need to avail herself of some further qualifications. The claimant had debts totalling £6,600.

The deceased had left his entire estate, totalling £264,279, to the defendant, who was a close friend. The defendant owned his own home (subject to a mortgage) and owned his own business (albeit it had not been doing as well of the last couple of years).

The judge was at pains to state that any decision in a case of this nature would turn on its own facts and while parallels could be drawn with the Ilott case, the decision in the latter did not set a precedent for all claims by adult children under the 1975 Act. In the Nahajec case the judge placed weight on the fact the claimant had repeatedly tried to establish a relationship with her father and that he was a 'stubborn and intransigent' man. The judge was also impressed that the claimant wanted to better herself by obtaining further qualifications as it showed a determination to improve her financial situation. Additionally he held that the size of the estate was such as to justify provision for her.

The claimant asked the court for approximately £70,000 but after consideration they awarded her £30,000 for her maintenance.

In Ball v Ball [2017] the claimant’s made a claim for reasonable financial provision under the 1975 Act. The claimant’s had been cut out of their mother’s will after making allegations of sexual abuse against their father. The father was subsequently charged and pleaded guilty to the majority of charges made against him. The deceased’s other eight children were all beneficiaries under the Will. The estate was small (under £200,000) and the claimants were in a very similar financial position to that of the beneficiaries, namely that they were 'all getting by' but nothing more.

The claimant's application failed and they received nothing from the estate. The court decided that due to the modest size of the estate and the large number of beneficiaries, making an award to the claimant’s would not make a significant difference anyway. Additionally, the court held that the father's abuse did not constitute a moral obligation on the mother to compensate them under her Will as the deceased did not ‘authorise, instigate or encourage’ the abuse.

Based on the most recent case law it appears that adult children with limited financial means can assume that the court will make as award in their favour, particularly if they are relying for the most part on the ‘moral obligation’ argument.

You may also be interested in reading an earlier article on Illott v Mitson on charity legacies and the importance of testamentary freedom.

Claims under the 1975 Act are notoriously hard to predict as decisions by the court are very fact specific. Our wealth of experience within this area of law means that we are best placed to provide you with advice on the legal principles and strategy of your case. If you have any questions relating to a claim of your own, please contact Bernadette Baker, or a member of the Contentious Trust and Probate Team or Estate Planning and Wills Team.