Ilott v Mitson: a landmark ruling on testamentary freedom

Last week the Court of Appeal made what many in the legal profession consider a landmark ruling in the case of Ilott v Mitson.

The case has rumbled on for over a decade and concerns Heather Ilott’s fight to receive a share of her estranged mother’s estate.  When Mrs Ilott’s mother, Mrs Jackson, died in 2004 she cut her daughter out of her Will entirely, choosing instead to leave her estate to three animal charities. 

Mrs Jackson left two letters with her Will explaining why she had left nothing to her daughter. In a nutshell, Mrs Ilott had eloped in the middle of the night with her husband-to-be at the age of 17. Mrs Jackson never forgave her daughter for this.  There were attempts during Mrs Jackson’s lifetime for the pair to reconcile, but reconciliation could not be achieved.

Following her mother’s death Mrs Ilott made a claim against her mother’s estate, asserting that it was unreasonable for her mother to make no provision for her.  This week the Court of Appeal agreed with Mrs Ilott, awarding her £164,000 from her mother’s estate.

This case is being seen as a landmark ruling because many observers consider it an attack on a principle which has long been enshrined in English law – testamentary freedom.

Nick Mendoza, Howard Kennedy
Nick Mendoza, Howard Kennedy

Testamentary freedom refers to the concept that a person, in making his or her Will, has free rein in deciding what to do with his or her property on death. Consequently, the Court of Appeal’s decision, while not consigning this principle to the history books, certainly seems to have dented the notion that we are all free to choose who we leave our estates to when we are gone.

However, as with many things that are advertised as being “free”, testamentary freedom is not quite as free as it sounds.  It has its limitations. One such limitation can be found in the form of the Inheritance (Provision for Family and Dependant) Act 1975. The aim of this Act is to allow an estate to be varied, post death, so as to make reasonable financial provision for an individual, like Mrs Ilott, if a Court believes that no provision, or inadequate provision, has been made for that person from a deceased’s estate.

What is controversial about this ruling is that to date it has been very difficult for a child to succeed in this type of claim without having proved that they had been financially dependent upon their deceased parent.  However, in this case Mrs Jackson was not supporting her daughter financially. She had had no contact with her for many years, and she left a letter setting out clear (if a somewhat spiteful) reasons why she cut her daughter out of her Will. Yet the Court still awarded Mrs Ilott a substantial portion of the estate, saying that it was fair in light of her straitened circumstances and basic human needs.

Does this herald a sea-change in the law or will this case prove to be an anomaly.  Only time will tell…

Nick Mendoza is an associate in the private client team at Howard Kennedy