Ilot v Mitson

JurisdictionEngland & Wales
JudgeLady Justice Arden,Lady Justice Black
Judgment Date31 March 2011
Neutral Citation[2011] EWCA Civ 346
Docket NumberCase No: B4/2010/2131/FAFMF
CourtCourt of Appeal (Civil Division)
Date31 March 2011

[2011] EWCA Civ 346

IN THE HIGH COURT OF JUSTICE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT, FAMILY DIVISION

Mrs Justice Eleanor King

Before: The President of the Family Division

Lady Justice Arden and

Lady Justice Black

Case No: B4/2010/2131/FAFMF

Lower Court No: FDF00810

Between
Heather Ilott
Appellant
and
David Mitson
1 st Respondent
Michael Land
2 nd Respondent
The Blue Cross
3 rd Respondent
Royal Society for the Protection of Birds
4 th Respondent
Royal Society for the Prevention of Cruelty to Animals
5 th Respondent

John M Collins (who appeared pro bono) for the Appellant

Giles Harrap (instructed by Wilsons Solicitors LLP) for the 3rd, 4th and 5th Respondents

Hearing dates: 8 February 2011

Sir Nicholas Wall P:

Introduction

1

Melita Jackson (the deceased) died on 10 July 2004 at the age of 70, leaving a net estate of some £486,000. After some pecuniary legacies (which are not material for the purposes of this appeal) she left the entirety of her residuary estate to the Blue Cross Animal Welfare Society, the Royal Society for the Protection of Birds and the Royal Society for the Protection of Cruelty to Animals (the charities). There is no evidence that the deceased had any connection with the charities, or that, during her lifetime, she had any particular love of, or interest in, either animals or birds.

2

The deceased's will, which is dated 16 April 2003 makes no provision for the appellant, who is now aged 50, and who is the deceased's only child, albeit estranged from the deceased at the date of the latter's death. The appellant is a married woman with five children, and lives in modest circumstances. The deceased was a widow whose husband (the appellant's father) had died in an industrial accident in 1960, whilst the deceased was pregnant with the appellant.

3

The appellant took proceedings under the Inheritance (Provision for Family and Dependants) Act 1975 (the Act). Her application came before a district judge sitting in the Principal Registry of the Family Division (DJ Million (as he then was)). In a reserved judgment dated 7 August 2007 after a two day hearing (at which the appellant gave evidence) the district judge held pursuant to section 1 of the Act, that "the disposition of the deceased's estate effected by (her) will…..(was) not such as to make reasonable financial provision" for the appellant, and awarded her a lump sum of £50,000, representing a capitalisation of the sum which the district judge found it would be "reasonable in all the circumstances of the case" for the appellant (as an adult child of the deceased) to receive for her maintenance – see section 1(1)(c) and 1(3) of the Act.

4

No point in this appeal is taken by the charities on the fact that the district judge awarded a lump sum by way of capitalisation of maintenance: indeed this was the provision which he was invited to make, if – as proved to be the case—he was against the charities' submission that the appellant's claim should be dismissed.

5

The appellant appealed against the quantum of the district judge's order, and the charities (who up until that point had taken a pragmatic view of the district judge's judgment) thereupon cross-appealed. They did so on the ground that the district judge had failed properly to apply the law, and that had he done so, he would have concluded that the absence of any provision for the appellant in the will was reasonable. They argued, accordingly, that the appellant's claim should be dismissed.

6

After a considerable delay, the appeal and cross-appeal came before Eleanor King J on 9 October 2009. In a reserved judgment ( [2009] EWHC 3114 (Fam); also reported at [2010] 1 FLR 1613) and handed down on 1 December 2009, the judge allowed the charities' cross-appeal and dismissed the appellant's claim. In summary, the judge found both (1) that the district judge had erred in law and also (2) that he had erred in balancing the various factors under section 3 of the Act. He had thus been "plainly wrong" to conclude that the deceased had failed to make reasonable financial provision for the appellant.

7

It is against this order that the appellant appeals. On the appeal, she was represented pro bono by Mr. John Collins of counsel. The executors, who are neutral in the proceedings, were, sensibly, not represented. The charities were represented by Mr. Giles Harrap of counsel. I am grateful to both counsel for their full and careful arguments.

8

It was not, however, until midway through Mr. Collins' argument that I realised fully the relief which he was seeking. He invited this court (1) to allow the appeal against the dismissal of the appellant's application under the Act, but also (2) to remit her appeal against the quantum of the district judge's order to a judge of the Division other than Eleanor King J for determination.. His case, in essence, was that due to the course taken by the judge, the appellant's appeal on quantum had never been heard.

9

Without prejudice to his submission that we should dismiss the appeal, Mr. Harrap did not dissent from such a course, in the event that we were to allow the appeal. However, in my judgment it follows that if we were to allow the appeal, we are not concerned with the question of quantum or the manner in which the district judge exercised his discretion to award the appellant £50,000 from the deceased's estate. This in turn means, in my judgment; (1) that provided this court is satisfied that the district judge was right not to dismiss the appellant's claim, nothing need to said about quantum; and (2) that this court can deal with the appeal on pure points of law. We were fortunate in that counsel cited to us all the relevant authorities and this, I think, enables this court to conduct a thorough review of the approach to be taken in adult children's claims under the Act.

10

This is, of course, a second appeal. However, permission for it has been given by Wilson LJ at an oral hearing on 18 November 2010. The learned Lord Justice also extended the appellant's time for filing her appellant's notice. I can, accordingly, proceed directly to the points of law raised by the appeal.

The issues raised by the appeal.

11

In my judgment, the appeal raises a number of important questions. The first relates to the role of a judge exercising an appellate jurisdiction (as Eleanor King J was) as opposed to a first instance jurisdiction. More profoundly, however, the case raises in stark form the approach which falls to be adopted when an adult child seeks to claim against the estate of a deceased parent, and, as I have already indicated, it is on this aspect of the case that I propose to concentrate.

12

Although their terms are familiar, I think it necessary to set out the relevant sections of the Act. As applied to the instant case, therefore, they are as follows: —

1. Application for financial provision from deceased's estate

(1) Where after the commencement of this Act a person dies domiciled in England and Wales and is survived by any of the following persons —

……..

(c) a child of the deceased;

……….

that person may apply for an order under section 2 of this Act on the ground that the disposition of the deceased's estate effected by his will………is not such as to make reasonable financial provision for the applicant…….

(2) In this Act "reasonable financial provision" –

…..

(b) ……. means such financial provision as it would be reasonable in all the circumstances of the case for the applicant to receive for his maintenance……

13

Nothing turns on section 2 of the Act, which empowers the court to make a lump sum payment out of the estate. The following parts of section 3 are, however, important: —

Matters to which the court is to have regard in exercising powers under Section 2

(1) Where an application is made for an order under section 2 of this Act, the court shall, in determining whether the disposition of the deceased's estate effected by his will or the law relating to intestacy, or the combination of his will and that law, is such as to make reasonable financial provision for the applicant and, if the court considers that reasonable financial provision has not been made, in determining whether and in what manner it shall exercise its powers under that section, have regard to the following matters, that is to say—

(a) the financial resources and financial needs which the applicant has or is likely to have in the foreseeable future;

(b) the financial resources and financial needs which any other applicant for an order under section 2 of this Act has or is likely to have in the foreseeable future;

(c) the financial resources and financial needs which any beneficiary of the estate of the deceased has or is likely to have in the foreseeable future;

(d) any obligations and responsibilities which the deceased had towards any applicant for an order under the said section 2 or towards any beneficiary of the estate of the deceased;

(e) the size and nature of the net estate of the deceased;

(f) any physical or mental disability of any applicant for an order under the said section 2 or any beneficiary of the estate of the deceased;

(g) any other matter, including the conduct of the applicant or any other person, which in the circumstances of the case the court may consider relevant…….

14

In relation to any application made by a child of the deceased, section 3(3) requires the court (without prejudice to the generality of section 3(1) (g) and in addition to the matters listed in paragraph (a) to (f)) to have regard to the manner in which the applicant was being or...

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7 cases
2 firm's commentaries
  • Family Wealth Management: Renewed Fears All Eyes On The US And Europe - Autumn 2011
    • United Kingdom
    • Mondaq United Kingdom
    • 12 September 2011
    ...of the transferable nil-rate band in October 2007. Making proper provision for your dependants was the subject of Ilott v Mitson [2011] EWCA Civ 346. This was an action brought under the Inheritance (Provision for Family and Dependants) Act 1964 by an estranged daughter (Ilott) whose mother......
  • Reviewing Your Will
    • United Kingdom
    • Mondaq United Kingdom
    • 20 September 2011
    ...of the transferable nil-rate band in October 2007. Making proper provision for your dependants was the subject of Ilott v Mitson [2011] EWCA Civ 346. This was an action brought under the Inheritance (Provision for Family and Dependants) Act 1964 by an estranged daughter (Ilott) whose mother......
2 books & journal articles
  • Informal Care and Private Law: Goveranance or a Failure Thereof?
    • Canada
    • Canadian Journal of Comparative and Contemporary Law No. 1-1, January 2015
    • 1 January 2015
    ...without good reason. 87 h ere is, moreover, a converse risk that the recognition of Fam 56 at 61-62, Hollings J; Ilott v Mitson , [2011] EWCA Civ 346 at para 75, Arden LJ. 83. See in particular Miller v Miller; McFarlane v McFarlane , [2006] UKHL 24, concerning the use of the courts’ powers......
  • Testamentary freedom versus testamentary duty: in search of a better balance
    • South Africa
    • Acta Juridica No. , August 2019
    • 15 August 2019
    ...though she had learning disabilities andreduced income-earning potential, in Hope v Knight [2010] EWHC 3443 (Ch) with Ilott vMitson [2011] EWCA Civ 346, in which a court awarded provision to a daughter who wascapable of earning an income but had, as a mother of f‌ive children, chosen not to......

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