Supreme Court rules on what is “reasonable provision” for an adult child dependent in a contested Will
Supreme Court rules on what is “reasonable provision” for an adult child dependent in a contested Will. Clue: don’t think you can overturn the wishes of your dear departed mother if she chooses to leave most of her estate to charity and not to you.
The recent case of Ilott v Mitson in the Supreme Court attracted much interest because the court ruled on the question of what constitutes “reasonable provision” for dependents. As barrister Aidan O’Brien argues, the court reaffirmed the core principle that it is up to the testator who they leave their estate to, not to bestow legacies on disappointed applicants.
On 15 March 2016, the Supreme Court handed down judgment in the case of Ilott v The Blue Cross & others. This is the first occasion in which the highest appellate court has considered a claim made under the Inheritance (Provision for Family and Dependents) Act 1975 (or indeed its predecessor, the 1938 Act). The Court unanimously allowed the charities’ appeal and restored the order of the District Judge made at first instance, so as to entitle Mrs Ilott to £50,000 from her late mother’s estate. This sum was found to represent “such financial provision as it was reasonable in all the circumstance of the case for her maintenance”.
Ilott provides useful guidance as to how claims under the 1975 Act are to operate. In particular, the Court provided a detailed analysis of the concept of “reasonable financial provision” and affirmed that:
‘The test of reasonable financial provision is objective; it is not simply whether the deceased behaved reasonably or otherwise in leaving the will he did, or in choosing to leave none. Although the reasonableness of his decisions may figure in the exercise, that is not the crucial test’
It is important to note that, under the 1975 Act, s.1(2), reasonable financial provision is what is ‘reasonable for [the claimant] to receive’, either for maintenance or without that limitation according to the class of claimant. This is an objective standard of financial provision and does not invite a court merely to make an order when it considers the deceased to have acted unreasonably.
Notwithstanding this, the reasonableness or otherwise of the deceased’s testamentary wishes are still a relevant factor. Ilott cites the test proposed by Oliver J in Re Coventry [1980] Ch 461 with approval:
‘There must, as it seems to me, be established some sort of moral claim by the applicant to be maintained by the deceased or at the expense of his estate beyond the mere fact of a blood relationship, some reason why it can be said that, in the circumstances, it is unreasonable that no or no greater provision was in fact made’.
Ilott has also confirmed that when considering a claim under the 1975 Act, it is improper to start from a hypothetical standard of financial provision with reference to the applicant’s needs and thereafter adjust the same with reference to the factors listed under section 3 of the 1975 Act. Instead, the court should take a ‘broad brush approach’ by considering all of the factors under the 1975 Act. The amount of weight attached to each of these factors is variable and will depend on the facts of each individual case.
The amount of any award under the 1975 Act is to be determined by the benchmark of maintenance. It is not the purpose of the 1975 Act to bestow legacies on disappointed applicants.
The Ilott decision does not reinvent the wheel with regards to claims made under the 1975 Act. Adult children continue to be eligible to bring claims and cases will be determined on their own unique facts. Unless ordered otherwise, such claims need to be brought within six months of the date of the grant of representation being issued.
Those considering making a claim under the 1975 Act are advised to seek legal help as soon as possible. Instructing a Public Access Barrister, with a specialist interest in contentious probate claims, will ensure that any claim is put on the strongest footing from the outset.
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