Some guidance appeared to have been given last year in the decision of Eleanor King J reported as H v M, L, The Blue Cross, RSPB and RSPCA [2010] WTLR 193 and H v J’s personal representatives, The Blue Cross, RSPB and RSPCA [2010] 1 FLR 1613.

All practitioners dealing with claims for family provision on death need to be aware of the Court of Appeal’s decision on 31st March 2011 to reverse the decision of Eleanor King J. In Ilott v Mitson, Land, the Blue Cross, RSPB & RSPCA [2011] EWCA Civ 346, the Court of Appeal overturned the decison of Eleanor King J on the basis that she was not entitled to reverse the decision of the District Judge. The Court of Appeal held that the District Judge had neither erred in principle nor been clearly wrong.

The Claim

1. Mrs Ilott made a claim for reasonable financial provision under the Inheritance (Provision for Family and Dependants Act) 1975 (“the Act”).

The history

2. Mrs Melita Jackson married Thomas Jackson on 3rd March 1956. He died on 13th June 1960. Their only child, now Mrs Ilott was born on 7th September 1960 and brought up by her mother. In February 1978 Mrs Ilott left home against her mother’s wishes and went to live with her boyfriend Nicholas Ilott. This was the start of what turned out to be a lifelong separation between mother and daughter.

3. Mrs Ilott married Mr Ilott on 30th April 1983 without telling her mother of the wedding. She had 5 children: Adam born on 6th January 1984, Ben born on 22nd April 1987 Laura born on 6th November 1988, Matthew born on 18th November 1991 and Ellen born on 11th November 1996. Mrs Ilott gave up work when Adam was born and has not worked since.

4. There were 3 occasions between 1983 and 2000 when mother and daughter made suggestions of reconciliation but the attempts at reconciliation failed. On 16th April 2002 Mrs Jackson executed her final will leaving nothing to he daughter. Over a number of years, and finally by a letter dated 23rd May 2002, Mrs Jackson made it clear to her daughter that she felt no responsibility towards her and that she was leaving her nothing.

5. Mrs Jackson died in 2004. She left net estate of £486,000. By her final will she left her estate (save for a £5000 legacy all parties agreed should be paid to a 3rd party) to the Blue Cross, RSPCA and RSPB.

Decision of the District Judge (“the DJ”)

6. Mrs Ilott was at trial before the DJ a 46 year old daughter suffering from neither physical nor mental incapacity of any kind who had made her life entirely independently of her mother for the 26 years prior to her mother’s death. She had limited financial resources and obvious financial needs such as to create a need for maintenance. The estate, although not of unusual size, was sufficient to provide for those needs. Mrs Jackson owed no obligation to provide for the charities. The DJ made a finding that the dominant reason for the failure of reconciliation attempts between mother and daughter was the unreasonableness of the mother and that in turn led to her unreasonably excluding her daughter. He went on to conclude that on these facts reasonable provision for Mrs Ilott had not been made.

Decision of Eleanor King J (“the judge”)

7. The judge concluded that the DJ erred in law in that he asked himself the wrong question and that he was plainly wrong in his conclusion having never properly stood back and balanced the sections 3 factors against one another. The DJ thought that the deceased was unreasonable in her inability to forgive her only child for running away and in preferring to leave her estate to charities in which she had shown no interest but that was not the issue. The question was not whether the deceased acted unreasonably but whether on an objective basis, having considered all the s.3 factors, the provision, or lack of it, was unreasonable.

8. The judge re-evaluated the s.3 factors on an objective basis and found there was nothing here beyond filial relationship and necessitous circumstances to tip the balance in favour of a finding that no provision was unreasonable provision.

Decision of the Court of Appeal

9. The Court of Appeal held that because the DJ had set out the s.3 factors and stated at the end of his judgement that all the s.3 factors produced an unreasonable result, he had done sufficient for his decision to stand.

10. The Court of Appeal was not critical of the judge’s own evaluation of the facts and conclusion that the Claimant had failed to make out her case that the absence of provision for the Claimant daughter was not reasonable but held that the Judge was not entitled to intervene in an appellate capacity.

The current position: application for permission to appeal to the Supreme Court

11. The Defendant charities have made an application to the Supreme Court for permission to appeal. In particular the charities seek clarification as to whether on the stark facts of the case a court properly considering the threshold condition could properly be satisfied that no provision for Mrs Ilott was not reasonable provision.

Update: 15 July 2011

Giles Harrap reports that the charities' application for permission to appeal the decision of the Court of Appeal in Ilott v Mitson and others - now reported at [2011] WTLR 779 - has been refused by the Supreme Court.

© Giles Harrap - 3 Pump Court Chambers

May 2011

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