'Where now testamentary freedom'
This is the question posed by Mr. James Aspden in his article in The Barrister edition #49. Mr. Aspden acted for the Defendant charities in the recent decision of the Court of Appeal in Ilott -v- Mitson [2011] EWCA Civ 346. As Counsel on the other side it is perhaps inevitable that I find myself on the opposite side of the argument.
Mr. Aspden lays great emphasis on testamentary freedom for those who make their wills. As he correctly points out, the law up to around a hundred years ago was clearly as stated by Sir James Hannen P. in Boughton -v- Knight (1873) LR 3 P&D 64:
"By the law of England everyone is left free to choose the person upon whom he will bestow his property after death entirely unfettered in the selection he may think proper to make. He may disinherit, either wholly or partially, his children, and leave his property to strangers to gratify his spite, or to charities to gratify his pride, and we must give effect to his will, however much we may condemn the course he has pursued."
Although that was the law, it caused great indignation. The regular figure in Victorian melodrama was the irrational father who cut off his wife and only son with a shilling. But, as so often happens, concrete ideas for reform came from the British Commonwealth. In 1900 the New Zealand Parliament passed the Family Protection Act, which enabled the Courts to overturn wills so far as was necessary to provide for the proper maintenance and support of spouses and children.
Over the next twenty or so years this was followed in turn by every state in Australia. This in turn led to the Inheritance (Family Provision) Act 1938. This Act aroused the ire of the traditionalists because, as Halsbury’s Statutes put it then, it "marked a notable departure from one of the most cherished principles of English law by enabling the Court to make provision for maintenance of the dependants of a testator out of his estate in defiance of his will".
Under the 1938 Act, the powers of the Court, and indeed the persons for whom the Court could make provision, were both sharply limited. Both by the Inheritance (Provision for Family and Dependants) Act 1975 and by the amendments which have been successively enacted to that Act, the Courts have been given jurisdiction to make orders in favour not simply of widows and young children, but also of adult children, dependants, cohabitees and now civil partners.
Of course, the Act made a careful distinction between the position of spouses of the deceased (now extended to civil partners) and all other persons who were or might claim to be within the categories of persons provided for by the Act. The spouses of the deceased can claim "such financial provision as it would be reasonable in all the circumstances of a case for a husband or wife to receive, whether or not that provision is required for his or her maintenance". Accordingly, the widow or widower or civil partner can ask the Court to determine what would be reasonable and proper provision for him or her to receive. So far as the deceased's children are concerned, their claim is only for "such financial provision as it would be reasonable in all the circumstances of the case the applicant to receive for his or her maintenance".
So if all the children and other dependants of the deceased are already well provided for, the Court has no power to make any additional provision under the 1975 Act. It is only when the child or other person is in need of maintenance, using that word in the widest sense, that the Court has power to intervene.
In those circumstances, it may be thought that Mr. Aspden is perhaps exaggerating the problem when he suggests that "Many are wondering whether it is worth bothering to make a will at all, if it can be overturned after your death by a Judge who does not agree with the choices you have made or who does not share your view that your children can be expected to fend for themselves once they reach adulthood, if they are not mentally or physically incapable of finding work". There are circumstances – and Ilott -v- Mitson was one – where it could fairly be said, and the Courts have determined, that Mrs. Ilott's straitened circumstances were such that in all the circumstances it was unreasonable that no provision was made for her maintenance.
The circumstances of the case were undoubtedly unusual. Heather Ilott was the only child of Melita Jackson. In 1978, at the age of 17, she fell in love with Nick Ilott. Mrs. Jackson considered that Nick would not make much of his life and strongly disapproved and sought to break off the association. So Heather eloped with Nick and they were later married. This led to a lifelong separation between mother and daughter. There were attempts at reconciliation. In relation to their failure, there were faults on both sides. The last attempt in 2000, involved Heather Ilott first apologising orally to her mother and then at her mother's request submitting a written apology for approval by her mother's solicitor. That reconciliation was short-lived, because Mrs. Jackson took umbrage because Heather had named her youngest child after the child's great-grandmother, Mrs. Jackson's mother-in-law. So she refused to have anything more to do with her daughter or her grandchildren and would not even allow her grandson in her house.
As Mr. Aspden says, Melita Jackson made her will in 2002, leaving her most of her estate to three charities and nothing at all to her daughter or grandchildren. She set out in a written statement and in a letter to her daughter why she was making no provision. Had that statement and the letter been a truthful and accurate account of her reasons, no doubt it would have carried great weight with the Court. But the district judge found that it was not accurate or truthful. Furthermore, she gave no explanation of why she chose the three charities, since she had shown no interest in any of them or their causes during her life. So the position was that there appeared to be no rational purpose in Melita's bequests and the only inference could fairly be that she had made them out of spite.
That, however, would not have been sufficient to enable Heather Ilott to succeed. But the district judge looked at all the circumstances. He found that because of a back problem her husband was not able to work regularly. She had five children. They lived in a rented home in Great Munden, which, despite its name, has fewer than a hundred inhabitants, in a fairly isolated part of Hertfordshire. She was not in paid employment. There was no bus service to the nearest town and she did not drive. The family had to live on a mixture of Mr. Ilott's earnings and Social Security benefits. The district judge came to the conclusion that not only was the failure by Melita Jackson to make any provision for her daughter unreasonable, but in the particular circumstances she did need provision for her maintenance.
It is therefore not a case where judges were simply being asked to re-distribute estates because they thought that the deceased made the wrong choice. It was where a situation arose that the deceased had failed to make provision that after investigating the whole circumstances the Court came to the conclusion ought to have been made.
There may well be cases where, even when a child is or can claim to be in need of further financial provision, a testator would be held to be justified in not making that provision because in all the circumstances the proper approach is that the child should make greater efforts or indeed that there is someone else who would benefit from the estate whose need is equal to or greater than that of the child. That was the position in the leading case of Re Coventry [1980] 1 Ch. 461. On the other hand, if there is no other claim upon a parent's generosity, surely any rational parent would say "Let bygones be bygones, I must make at least a reasonable provision for my child". We have surely moved at least a little way from the harsh and unreasonable approach summarised in Boughton -v- Knight.
JOHN M. COLLINS
Zenith Chambers
10 Park Square
Leeds
LS1 2LH
3rd June 2011