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Charities vs children: who decides?

  • November 08, 2016
  • By Hunters Law

With the Supreme Court Hearing for the Illot v Mitson case due to take place on the 12th December 2016, the Solicitors Journal recently reported that the number of claims brought under the Inheritance (Provision for Family and Dependants) Act 1975 (“IPFDA 1975”) in 2016 was  eight times more than the number of cases brought in 2005.  Does this increase and the Court of Appeal’s decision in Illot v Mitson, mark a change in the attitude of the courts and weaken the principle of testamentary freedom?

Traditionally, it used to be thought that adult child claimants would have greater difficulty than other classes of claimants in establishing a successful claim under IPFDA 1975.  Mere blood relationship was not sufficient and they needed some specific mental or physical disability or other factor which required the Court to make an order for reasonable financial provision in their favour.

In Illot v Mitson, the Court of Appeal awarded the deceased’s estranged adult daughter nearly one-third of her residuary estate despite the clear provisions of the deceased’s Will, which left her residuary estate to three animal charities, and a professionally drafted Letter of Wishes, which set out in detail why she had disinherited her daughter. By contrast, in the recent case of Ames v Jones, an (albeit lower) Court rejected the claim of the deceased’s adult daughter for reasonable financial provision on the grounds that she was capable of working, and her decision not to do so was a lifestyle choice. Can these decisions be reconciled?

Most claims under the IPFDA 1975 are fact-specific and in reaching a decision whether reasonable financial provision has been made, the Court will consider the list of relevant factors under Section 3 of the IPFDA 1975, which includes, amongst other things, the financial resources and needs of the applicants and beneficiaries of the estate, the deceased’s obligations to the applicant and beneficiaries, and the size and nature of the estate. It is the presence or absence of these factors which will determine the merits of a case. In Illot v Mitson, the residuary beneficiaries were charities with whom the deceased had no prior connection and her Letter of Wishes was predominantly negative and concentrated on the reasons why she wished to disinherit her daughter. On the other hand, in Ames v Jones, the residuary beneficiary who stood to lose out on a successful claim was the deceased’s wife who needed the funds to meet her own needs.

While the decision of the Supreme Court in Illot v Mitson is awaited with interest, the need for a clearly drawn Will and detailed Letter of Wishes, which expresses positive reasons for why the Testator has reached the decision that he or she has taken, is still paramount.

For more information, please contact the partner having responsibility for your affairs or any partner in the Private Client Department at Hunters.

 

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