Shall we leave it all to the children?

The case of Ilott v Mitson featured heavily in the news this summer when a Court of Appeal ruling lead to a, somewhat controversial, successful claim under the Inheritance (Provision for Family and Dependants) Act 1975 ("the 1975 Act"). So how may this affect those in the future who wish to disinherit their children, whether estranged or otherwise?

The background of the case is that the deceased had been estranged from her daughter for some 26 years. This was due to her daughter's decision to leave home at the age of 17, with a gentleman whom she later married, and to whom she is still married. The deceased did not agree with her daughter's choice of husband. The couple went on to have five children (the youngest of which was at university at the date of the appeal), they live in a property rented from a Housing Association and rely heavily on state benefits as their source of income. The daughter has no savings and no private pension provision. They lived a very modest lifestyle, having never even taken a holiday. Over the years there were three attempts at reconciliation between mother and daughter, all of which failed but with neither the deceased nor the daughter particularly to blame.

The deceased mother had her Will drawn professionally and, subject to a legacy, she divided the residue of her estate between three animal charities. She left clear instructions to her Executors as to why she was disinheriting her only daughter. There was no evidence that the deceased had any connection to the three charities during her lifetime, nor did she decide to leave her estate to any other family member. The deceased was a widow, her husband having died in an industrial accident before their daughter's birth, and the deceased having received what was described as a "substantial" payment because of his death.

The 1975 Act is clear on the categories of people who can make a claim under the Act. It states the powers of the Court to make orders and the matters to which the Court must have regard in exercising these powers.

The decision the Court made when looking at the 1975 Act, alongside previous case law, was that the daughter be awarded a sum to provide her with the ability to purchase her Housing Association house and a sum of no more than £20,000 to provide immediate capital, but in such a way so as not to affect her state benefits. This was despite the daughter being an adult, with adult children, who was not financially dependant on her mother and who had been estranged from her. She had also always been aware that her mother was not going to make any financial provision for her.

The amount awarded overall made up about one third of the deceased mother's estate, but what is now left after legal fees remains unknown. It also remains unknown as to what this case means in the future - it could open the way for claims to be made on an estate from non-financially dependent, adult children who have been disinherited by their parents. However, the decision might not be as radical as its sensational reporting in the press might suggest.

This case has been before the Court at least five times since the deceased's death in 2004 and the charities named in her Will may appeal this latest decision to the Supreme Court.

Although it has caused some controversy, the decision in Ilott v Mitson is, in the particular circumstances of that case, probably unsurprising. Far from driving a coach and horses through the perceived wisdom of being sure to make a Will, it probably serves to reinforce just how important it is to have a Will and that the Will should be professionally drawn. Challenges cannot necessarily be excluded altogether but, by appropriate measures and careful wording, the position remains that the chances of a successful claim in an estate can be reduced to a minimum.