Re Jackson (Deceased); Ilott v Mitson and Others

JurisdictionEngland & Wales
JudgeLord Hughes,Lord Neuberger,Lady Hale,Lord Kerr,Lord Clarke,Lord Wilson,Lord Sumption
Judgment Date15 March 2017
Neutral Citation[2017] UKSC 17
Date15 March 2017
CourtSupreme Court
Ilott
(Respondent)
and
The Blue Cross and others
(Appellants)

[2017] UKSC 17

before

Lord Neuberger, President

Lady Hale, Deputy President

Lord Kerr

Lord Clarke

Lord Wilson

Lord Sumption

Lord Hughes

THE SUPREME COURT

Hilary Term

On appeal from: [2015] EWCA Civ 797

Appellants

Penelope Reed QC

Hugh Cumber

(Instructed by Wilsons Solicitors LLP)

Respondent

Brie Stevens-Hoare QC

John Collins

Constance McDonnell

(Instructed by Wright Hassall)

Heard on 12 December 2016

Lord Hughes

( with whomLord Neuberger, Lady Hale, Lord Kerr, Lord Clarke, Lord WilsonandLord Sumptionagree)

1

Unlike some other systems, English law recognises the freedom of individuals to dispose of their assets by will after death in whatever manner they wish. There are default succession rules in the event of intestacy, but by definition those only come into play if the deceased left no will. Otherwise the law knows of no rule of automatic succession or forced heirship. To this general rule, the statutory system of family provision imposes a qualification. It has provided since 1938 for the court to have power in defined circumstances to modify either the will or the intestacy rules if satisfied that they do not make reasonable financial provision for a limited class of persons. That power was first introduced by the Inheritance (Family Provision) Act 1938 ("the 1938 Act"). The present statute is the Inheritance (Provision for Family and Dependants) Act 1975 ("the 1975 Act").

2

The key features of the operation of the 1975 Act are four. First, it stipulates no automatic provision; rather the will (or the intestacy rules) apply unless a specific application is made to, and acceded to by, the court and a specific order for provision is made. Second, only a limited class of persons may make such an application; they are confined to spouses and partners (civil or de facto), former spouses and partners, children, and those who were actually being maintained by the deceased at the time of death. Third, all but spouses and civil partners who were in that relationship at the time of death can claim only what is needed for their maintenance; they cannot make a claim on the general basis that it was unfair that they did not receive any, or a larger, slice of the estate. Those three features are laid down expressly in the 1975 Act. The fourth feature is well established by case law both under this Act and its predecessor of 1938. The test of reasonable financial provision is objective; it is not simply whether the deceased behaved reasonably or otherwise in leaving the will he did, or in choosing to leave none. Although the reasonableness of his decisions may figure in the exercise, that is not the crucial test.

3

The present case concerns one kind of claimant, namely an adult child who has lived quite independently of her parent, the deceased testator, for many years, but who is in straitened financial circumstances. That is only one of the types of case which may raise difficult individual questions under the 1975 Act, which have to be resolved on a case-by-case basis. Applications by spouses may do so, whether living with the deceased at the time of death or separated or divorced. Some cases involve difficult balancing of competing claims by several persons upon limited estates. Yet others involve assessing the circumstances in which the deceased was supporting the claimant in some way up to the time of his death; those circumstances may give rise to a claim that future maintenance is reasonably required, or they may demonstrate that support was given in circumstances in which there is no obligation to continue it after death. Some of the factors inevitably dealt with in this judgment may apply also to types of case other than those of adult children living separately from the deceased, but there is no occasion for this court to attempt to meet every difficulty to which claims for family provision may give rise.

The facts of the present case
4

The testator, Mrs Jackson, was widowed after only four years of marriage and when expecting her only child, a daughter, now Mrs Ilott. In 1978, when Mrs Ilott was 17, she left home secretly to live with her boyfriend, of whom Mrs Jackson did not approve. There followed a lifelong estrangement between mother and daughter which lasted 26 years until the former's death in 2004 at the age of 70. Mrs Ilott married the man she left home to live with, without telling her mother at the time, although the latter learned of it afterwards. They are still together, and have had five children. They have lived their entire married lives independent of any financial connection whatever with Mrs Jackson, and for much the greatest part of that time in complete isolation from her.

5

District Judge Million reviewed in some detail the evidence of the very limited contacts which mother and daughter had over the extended intervening years. Mrs Jackson had kept a diary and Mrs Ilott gave her own detailed account. There had been three attempts at reconciliation, but all had foundered. The first, after the birth of the first of Mrs Ilott's children in Spring 1983, had lasted the longest. It had been fostered by Mr Ilott's mother, and had resulted in Mrs Jackson visiting the new mother in hospital and in several subsequent telephone calls between them. However, these had not in the main been amicable and they ended after an unpleasant row between Mr Ilott and Mrs Jackson, as to which the District Judge held that Mrs Ilott's evidence about what her husband had said was deliberately evasive. Later conversations between mother and daughter occurred many years later in 1994 and 1999 after chance encounters in public places, but these were very short lived and also failed to establish significant common ground. District Judge Million went on to find that Mrs Jackson was capricious and unfair in many of the criticisms of Mrs Ilott recorded in letters, and that her decision to exclude her altogether from her estate was harsh and unreasonable. He found that the hurt felt by Mrs Jackson at the original and sustained rupture of her family, and what she saw as being deprived of her grandchildren, was so entrenched that little short of rejection by Mrs Ilott of her husband would have satisfied her; a written apology sent at one stage by Mrs Ilott did not meet her needs. Equally, he found that Mrs Ilott and her husband contributed to some of the difficulties in sustaining a reconciliation. It will be necessary later to refer to the limits to the relevance of these findings.

6

Whatever the rights and wrongs of the family feud may have been, there is no doubt that it was sustained for a quarter of a century and was the reason why Mrs Jackson decided not to make any provision for her daughter in her will. This was not a decision taken in haste. She had made it at least as early as Spring 1984, when she made a will and recorded a letter of wishes. This was at a time when there was some contact between mother and daughter, during the first attempt at reconciliation and about two months before the row which ended it. The side letter of wishes stated her decision as follows, after referring to Mrs Ilott's initial departure from home in 1978:

"She did not get in touch with me and I heard from her husband's parents that she had a baby boy. When I heard about this, I visited her in hospital and took flowers and brought up her perambulator and other presents. However, she made herself very unpleasant and wished to have nothing to do with me. Therefore she receives nothing from me at my death."

There is no reason to think that Mrs Ilott was aware of this 1984 will at the time that it was made, nor to suppose that it had anything to do with the breakdown of the then fragile attempt at reconciliation. But the decision remained firm and Mrs Jackson reiterated it in 2002 when she made her last will, and again left a side letter. It similarly stated her settled conclusion that no provision should be made for Mrs Ilott, saying that she felt no moral or financial obligation towards her in view of what had happened, and it instructed her executors to resist any claim which Mrs Ilott might make. Mrs Ilott's evidence made clear that her mother told her of this decision and the District Judge found that she and her family had managed their lives for many years without any expectation of benefit from the estate. Apart from a modest legacy to a benevolent association connected with her late husband's employment, Mrs Jackson's will left her estate to charities with which she had had no particular connection during her lifetime, but which represented her freely made and considered choice of beneficiaries. The estate, of which the largest single component was a house in the home counties, was worth in round figures £486,000.

7

Mrs Ilott's financial circumstances were conservatively described by the District Judge as modest. The family lived in a house rented from a Housing Association. At the time of his decision, four of the children were living at home, one of them, aged 20, in work. Mrs Ilott had elected since the birth of the first of their children to remain at home and was not employed except as her husband's bookkeeper for £240 pa. Her husband had intermittent work as a supporting actor and earned a little over £4,100 pa net after charging some expenses such as car costs which brought some benefit in kind. Leaving aside any small contribution from the 20 year old son, the rest of the family income was in the form of child benefit (£1,878) and working tax credits (£8,112). The family was also entitled to housing benefit and council tax benefit, together worth about £5,100 pa. The District Judge assessed the net annual income, after including the limited benefit in kind, at £20,387. He then allowed for some limited, and unspecified, earning capacity in Mrs Ilott, at...

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