Even a clearly set out will and testament cannot avoid legal squabbles after death.
This was made only too evident after very lengthy and protracted probate litigation was recently finally settled by the Supreme Court. When Melita Jackson died in 2004, she surely had no idea that the clear instructions and intentions set out in her will would take 13 years to finally be approved.
In reality, it was closer to 15 years. Prior to her death aged 70, Mrs Jackson had written her last will in 2002. In that, she set out in an accompanying letter that she had clearly disinherited her only daughter. Heather Jackson had left the family home in 1978 to lived with her then boyfriend, Nicholas Ilot, whom her mother strongly disapproved of. Miss Jackson eventually married the boyfriend in question, and they remain married in 2017. However, mother and daughter never got over that and other differences during their lives. Despite several failed attempts at reconciliation (with both women blaming the other) over the intervening decades, they remained at odds, with the result that Mrs Jackson disinherited Mrs Ilot. Instead, the bulk of her estate (initially valued at £486,000) was left to animal charities, namely The Blue Cross, the RSPCA and the RSPB. After her death, Mrs Ilot challenged the will, on the grounds that it was unreasonable.
The next decade saw protracted litigation in the probate courts, with Mrs Ilot, from Great Munden, Hertfordshire, alternatively being awarded money and the charities appealing. Initially awarded a small settlement, the High Court reversed this, with the settlement being reinstated by the Court of Appeal in 2011. Following that, Mrs Ilot attempted to increase the £50,000 initially awarded to her. This was struck down by the High Court, but allowed by the Court of Appeal, who awarded her £164,000 of her mother’s estate in 2015. The charities appealed – with the result that Lord Hughes, giving the leading and unanimous verdict of a seven Judge hearing at the Supreme Court in March 2017, overturned the 2015 verdict, reducing Mrs Ilot’s share to the initial £50,000.
Throughout this protracted litigation, it was advanced that Mrs Ilot had been unreasonably disinherited by her “capricious and harsh” mother. Mrs Ilot is a mother of five, has no state pension, and was living on state benefits when she initially challenged the will under the Inheritance (Provision for Family and Dependants) Act (1975). Applying the 1975 Act, the Court of Appeal had awarded her £140,00 in 2015 to buy her housing association property, and a further £20,000 structured to avoid her losing her benefits, but designed to removed her from poverty. The Court of Appeal found that Mrs Ilot would have otherwise faced a life of poverty, living on state benefits and trying to care to four children still at home. The fifth and eldest child, born in 1983, was working at this time, with Mr Ilot working occasionally as a supporting actor.
The Court of Appeal had relied on parts of the 1975 Act. Quoting from Lord Hughes’ verdict:
(2) The key features of the operation of the 1975 Act are four … Second, only a limited class of persons may make … 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.
Indeed Lord Hughes had started his verdict quite clearly setting out the same principle of law and equity which the animal charities had also relied on:
(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 … 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.
Further to that, equity and probate law make generous allowances for those that leave part of their estate to charities, and it is a time-honoured tradition that many do leave money or property to any number or nature of charitable causes in their wills. However, wills are often subject to scrutiny and challenges, often over such charitable gifts.
Even if challenged under law, even if the provisions are deemed as harsh or unreasonable, testamentary freedom allows and entitles people to leave property and other assets to whoever they please after their death. Provided that the will is drafted in accordance with law, that no illegal or unlawful provisions are made, or that the provisions are not too onerous, unreasonable or ridiculous, law and equity will traditionally uphold a property drafted will. Duress or mental capacity can be called into question (and indeed often are), but the ability to choose how your property is disposed after your death is a fundamental right.
The Law of Succession, the law of equity, wills and probate, is often seen as arcane and convoluted; which indeed it is. It is also remarkably simple, as ultimately the Law of Succession seeks to enable a testator to dispose of their property in accordance with their wishes. In this, of course, archaic legal formats need to be observed. Given the complex nature of equity and probate, it is always strongly recommended to get a legal professional to draft a will.
In addition to a clearly drafted will, case law and legal precedent had long been favourably inclined to those to make a clear statement of their intentions for their property. Such a clear statement will never override a properly constituted will, but will act in support of a will, or can be the clincher in any disputes. Returning to Mrs Ilot, Mrs Jackson had been very clear and open about disinheriting her daughter, even so far as to filing an accompanying letter with her final will setting out the reasons why Heather Ilot was disinherited. That letter was relied upon in some of the court proceedings. Indeed, Lord Hughes quotes from the letter in his verdict:
(6) [Heather Ilot] 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 [pram] 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.
The 1975 Act and other statutes and cases additionally set out the concept of “reasonable financial provisions”, and the doctrine of maintenance. Maintenance is essentially providing assistance for those who might expect it (such as children), in the vast majority of cases tackling low or limited financial means. Maintenance is extremely broad, and is also deliberately limited under law. This is to allow for wills to be made in accordance with the wishes of the testator, as opposed to the wishes off the courts regarding maintenance of certain classes for people (e.g. spouses or ex spouses). Whilst wanting to avoid people existing in poverty when they could benefit from a will, the courts are also determined to uphold testamentary freedom.
It is that testamentary freedom which is a key part of wills and probate – and it is that very freedom that the Supreme Court upheld in ruling against Heather Ilot and in ending probate litigation overcast decade in making. Even if a will is deemed by some to be unreasonable and unfair – it was the final choice of the deceased to leave estate as they saw fit, and in that particular manner. That freedom of choice is all important – both legally and philosophically.