How much support must a testator provide to an estranged an adult child? This was the issue before the England & Wales Court of Appeal in Ilott v. Mitson.
The Applicant, Heather Ilot, now 50 years old, is the only child of the deceased Melita Jackson. Ms. Ilott brought her claim under the UK’s Inheritance (Provision for Family and Dependents) Act 1975 (the “Act”). The Act is similar to Ontario’s Succession Law Reform Act, which provides that certain people may qualify for support from an estate.
Ms. Ilott and Ms. Jackson had been estranged for decades. The evidence before the Court established that Ms. Jackson had difficulty maintaining relationships with many people, and that part of the issue between Ms. Ilot and Ms. Jackson was the latter’s disapproval of the former’s husband and the name of their youngest child.
Ms. Jackson told her lawyers that she saw no reason for her daughter to receive any inheritance, and explicitly instructed her executors to fight any claim brought by Ms. Ilott against the estate. The entire estate was left instead to a number of charities.
The Deputy Judge found that Ms. Jackson acted in a high-handed and capricious manner when she disinherited Ms. Ilott, and granted Ms. Ilott and award of £50,000. Ms. Ilott appealed.
The financial means of the applicant is one of the many factors the court will consider when determining the amount of support to grant to a successful applicant.
Ms. Ilott, was the recipient of government assistance.
The Court of Appeal weighed the expectations of the Charities against the expectations of Ms. Ilott and found:
The only beneficiaries are the Charities, who can have had no expectation … the deceased had no connection with the Charities. The appellant, on the other hand, was the only child of the deceased, and she was deprived of any expectation primarily because Mrs Jackson had acted in an unreasonable, capricious and harsh way towards her only child.
The Court also considered who was at fault for the estrangement:
I do not consider that on the facts of this case the estrangement ought to deprive the appellant of an award, or even substantially to diminish it, for three reasons. First, although DJ Million found that she was partially responsible for the failure of the attempts at reconciliation, there is no suggestion that she wanted to be estranged from Mrs Jackson. Second, while she may not have made the choices in life that her mother thought were necessary for her to make a success of her life, she has made a success of her life in other ways through being a mother and homemaker. Third, not only may it be difficult to apportion fault here but there may not have been fault on anyone’s part. Estrangement may simply have been the result of Mrs Jackson’s inability to make lasting relationships with anyone, of which there is other evidence. There is no finding on that one way or the other.
Finally, the Court considered the means of Ms. Ilott, who had never really worked outside of the home:
The court is entitled to look at future as well as present needs. The appellant is now in her 50s and has no pension.
I consider that the appellant’s resources, even with state benefits, are at such a basic level that they outweigh the importance that would normally be attached to the fact that the appellant is an adult child who had been living independently for so many years.
In my judgment, what the court has to do is to balance the claims on the estate fairly. There is no doubt that, if the claimant for whom reasonable financial provision needs to be made is elderly or disabled and has extra living costs, consideration would have to be given to meeting those. In my judgment, the same applies to the case where a party has extra financial needs because she relies on state benefits, which must be preserved. … The provision of housing would enable her both to receive a capitalised sum and to keep her tax credits. If those benefits are not preserved then the result is that achieved by DJ Million’s order in this case: there is little or no financial provision for maintenance at all.
The claim of the appellant has to be balanced against that of the Charities but since they do not rely on any competing need they are not prejudiced by what may be a higher award than the court would otherwise need to make.
The Court of Appeal granted Ms. Ilott £143,000.00 to purchase her home, plus the costs of doing so, and drafted the decision in such a way that protected Ms. Ilott’s entitlement to ongoing government assistance.
The media coverage of this case has been dramatic; some of the more excitable commentators have referred to this decision as the death knell for testamentary freedom. Such hyperbole is not helpful.
In fact, the provision of dependant support to adult children and the moral obligations of testators are well-established statutory and equitable rights. Readers should not overlook the significance of the fact that the estate in Ilott v. Mitson was large enough to provide a benefit to the named charities, and to minimize the precariousness of the applicant’s state-dependent life style. The outcome may have been different if the applicant was able to support herself, or if the beneficiaries had been close relatives, friends, or dependants with greater needs than those of the applicant.
The England & Wales Court based its calculation of quantum in part on the Duxbury Tables – a calculation used in the UK to calculate support spousal support in divorce proceedings. Canada has not yet adopted that approach to calculating dependant support, but experts have suggested that it is only a matter of time before we do so.
Drafting solicitors may wish to advise testators on their oral obligations, and take care to establish on the face of the will any long-standing connection the testator may have to charitable beneficiaries of the estate, especially if the testator intends to disinherit someone they are a morally obliged to support.