The case now known as Ilott v The Blue Cross [2017] UKSC 17 was the first time that the Inheritance (Provision for Family and Dependants) Act 1975 was considered at the highest judicial level. The Court of Appeal ([2015] EWCA Civ 797, noted in [2016] C.L.J. 31) had significantly enhanced the award given to an estranged and “disinherited” but needy daughter (Heather Ilott) at the expense of the charities (the Blue Cross, Royal Society for the Protection of Birds and Royal Society for the Prevention of Cruelty to Animals) who were the principal beneficiaries under the will of her mother, Melita Jackson, leaving her with £143,000 out of the £486,000 estate primarily to purchase the council house in which she and her family were living. The Supreme Court unanimously allowed the charities’ appeal, restoring Judge Million's original £50,000 order. Giving the lead judgment, Lord Hughes reasserted the centrality of testamentary freedom in English law, emphasised the importance of the Act's limitation to “reasonable financial provision” for maintenance for non-spouse/civil partner applicants (s. 1(2)(b)), and held that a need for maintenance was a necessary but not sufficient condition for a successful claim. He approved previous case law in holding that maintenance could not “extend to any or everything which it would be desirable for the claimant to have” (at [14]), but was not limited to “subsistence” either (at [15]). He also confirmed that the focus of the correct test under the 1975 Act is not on the behaviour of the testatrix, but opined the reasonableness of her decision may still be a significant consideration, as may the extent of any “moral claim” even if that is not a “sine qua non” (at [20]).
The Court of Appeal considered Judge Million to have made two errors. First, he stated that the award should be limited because of Heather's lack of expectation of provision and ability to live within her current means, but omitted to explain what the award might otherwise have been and how precisely it should be limited. Secondly, he failed to verify his award's effect on Heather's state benefits. The Supreme Court unanimously held that Judge Million had made neither alleged error. On the first, the Act required “a single assessment…of what reasonable financial provision should be made in all the circumstances of the case” (at [34]). It did not require the judge “to fix some hypothetical standard of reasonable provision and then either add to it, or discount from it … for variable factors” (ibid.). The two dominant factors in the case were the estrangement and Heather's straitened circumstances, and Lord Hughes even suggested that it would have been legitimate for the judge to have concluded that it was entirely reasonable for no provision to be made at all in the will because of the estrangement (a matter on which leave to appeal had been refused by the Supreme Court in 2011). The judge was therefore definitely able to say that “what reasonable provision would be was coloured by the nature of the relationship between mother and daughter” (at [35]). The Court of Appeal's order, by contrast, had given “little if any weight” to the length of the estrangement between the protagonists (at [46]).
The Supreme Court was also concerned that again “little if any weight” had been given by the Court of Appeal's order to Mrs. Jackson's very clear wishes (see para. [46]). It was incorrect to say that the charities’ lack of any expectation of benefit (Mrs. Jackson not having been involved with them during her life) was on a par with Heather's lack of any similar expectation. They were the beneficiaries under Mrs. Jackson's will, and were not required to justify their claim to the estate with reference to needs in the same way that Heather did. The Court of Appeal had erred in suggesting that they were not prejudiced by a higher award to Heather because they could not plead human needs: clearly the benefit to an estate beneficiary is inherently reduced by an order under the 1975 Act. The Supreme Court was sympathetic to the general position of charities in this context, emphasising that they “depend heavily on testamentary bequests for their work, which is by definition of public benefit and in many cases will be for demonstrably humanitarian purposes” (ibid.). It was also considered erroneous to suggest that the court had no need to give specific consideration to Mrs. Jackson's wishes because Parliament had limited claims under the 1975 Act to particular circumstances. Those wishes were relevant factors and fell to be considered alongside the others.
On the second alleged error, that Judge Million had been unaware of the effect of his order on Heather's entitlement to benefits, the Supreme Court held that Judge Million had in fact addressed the impact on benefits. Lord Hughes held that if Heather spent the £50,000 in a particular way that impact would be minimised. In fact, Lord Hughes suggested that the Court of Appeal had somewhat ironically given insufficient attention to the impact of its own order on Heather's benefits position.
That was sufficient to dispose of the case: the £50,000 award met many of Heather's needs for maintenance, allowing her to “buy much needed household goods and have a family holiday” (at [66], per Lady Hale), and should be restored. But even if housing provision had been appropriate, Lord Hughes held that a life interest would have been preferable to capital. Lady Hale then gave a striking supplementary judgment, with which Lords Wilson and Kerr agreed. She observed that Ilott raised “some profound questions about the nature of family obligations, the relationship between family obligations and the state, and the relationship between the freedom of property owners to dispose of their property as they see fit and their duty to fulfil their family obligations”, claiming (at [49]) that “none [of those questions are] answered by the legislation which [the Supreme Court] had to apply”. It may be true that the questions are not conclusively resolved on the face of the 1975 Act, but the Supreme Court did of course manage to resolve the case. In any event, Lady Hale criticised “the unsatisfactory state of the present law” for “giving … no guidance as to the factors to be taken into account in deciding whether an adult child is deserving or undeserving of reasonable maintenance”, particularly in light of the range of public views on the point (at [66]). She took the unusual step of expressing “regret that the Law Commission did not reconsider the fundamental principles underlying such claims when last they dealt with this topic in 2011” (ibid.; Intestacy and Family Provision Claims on Death (Law Com. No. 331, 2011)).
The end result will be a relief for the charities, who took a financial and reputational risk in fighting the case all the way to the Supreme Court, which gave judgment well over 12 years after Mrs. Jackson's death. The charities did so largely on principle because of the possible wide impact of the Court of Appeal's approach. The decision will also be welcomed by many private client practitioners and those who support the idea that property rights extend to control on death and that able-bodied adult children should not be able to disrupt testamentary intentions.
Some of the clearly contestable elements of the Court of Appeal's judgment, such as the suggestion that the charities were not prejudiced by a higher award to Heather, have been satisfactorily resolved. But the Supreme Court's decision may itself be questioned in some respects. There would arguably be little point in the 1975 Act's application to non-spouse/civil partnership cases if it were not able to raise a claimant's standard of living reasonably significantly beyond what is available from state benefits. On that basis, Heather had a need for maintenance by the standards of many people, and since the courts are often reluctant to consider the conduct regarding the relationships of the protagonists in intra-family disputes, as Lord Hughes recognised, it could be seen as surprising for the Supreme Court to accept that her claim should be quite so limited with reference to the relationship between mother and daughter. That said, if it is arguable that positive contributions and conduct should be given some recognition within the limitations of maintenance, a general idea that Lord Hughes appeared cautiously to approve, that is consistent with his reasoning on the converse case where parent and child have not been close at all.
The debate over the proper balance between testamentary freedom and provision for family members will inevitably continue. For now, it seems as though the “testamentary freedom” camp are in a stronger position than they were before the Supreme Court's decision. But it should be remembered that Heather Ilott still went away with something despite being left out of her mother's will (even if similar future claimants may not be so lucky and the details of an arrangement between her and the charities are not public), and it will be interesting to see whether Lady Hale's plea for reform is heeded.
