A Mother, Her Estranged Daughter and Three Charities: Ilott v The Blue Cross

A mother left almost everything she owned, about £486,000, to three animal charities [6]. Her only child, a daughter raising a family on a very tight budget, received nothing [4] [7]. The case went all the way to the Supreme Court. By the time it was argued there, twelve years had passed since the mother died [28].

This is Ilott v The Blue Cross and others [2017] UKSC 17, decided by the Supreme Court on 15 March 2017. Lord Hughes gave the main judgment, and Lady Hale added her own.

It is a sad story. A mother made a clear, considered choice. A daughter in real need asked the court to step in. The court had to balance the two.

1. What Happened

A family that came apart

Melita Jackson was widowed after only four years of marriage, while she was expecting her only child [4]. That child is now Mrs Ilott.

In 1978, when she was 17, Mrs Ilott left home secretly to live with her boyfriend. Her mother did not approve of him [4]. The couple married, and they are still together. They have five children [4].

Mother and daughter were estranged for 26 years, until Mrs Jackson died in 2004 at the age of 70 [4]. There were three attempts at reconciliation, and all of them failed [5]. The first began after the birth of Mrs Ilott's first child in 1983. Mrs Jackson visited the new mother in hospital. But the contact ended after a row [5]. Later contacts, in 1994 and 1999, came about by chance and did not last [5].

The trial judge looked closely at the history. He found that both sides contributed to the difficulties in keeping a reconciliation going [5] [47]. Whatever the rights and wrongs, the Supreme Court said, the feud lasted a quarter of a century [6].

A considered choice in favour of charity

Mrs Jackson's decision was "not a decision taken in haste" [6]. She first made it in spring 1984, when she made a will and wrote a letter of wishes explaining it. She made it again in 2002, in her last will and a second letter. That letter said she felt no moral or financial obligation towards her daughter, and asked her executors to resist any claim [6]. Mrs Ilott knew of her mother's decision. The family had managed for many years without any expectation of inheriting [6].

Apart from a modest legacy to a benevolent fund connected with her late husband's work, Mrs Jackson left her estate to charity [6]. The charities were The Blue Cross, the Royal Society for the Protection of Birds and the Royal Society for the Prevention of Cruelty to Animals. The Supreme Court described them as her "freely made and considered choice of beneficiaries" [6].

A family on a very modest income

Mrs Ilott's family rented their home from a housing association [7]. She had stayed at home to bring up the children. Her husband had occasional work as a supporting actor [7]. The trial judge put the household's net income at £20,387 a year [7]. About 75% of it came from state benefits [63].

They were not in debt. They had about £4,000 in savings and lived within their means [8]. But they could do very little. The household equipment was old and much of it worn out. The car had cost £245 and kept breaking down. They had never been able to afford a family holiday [8].

2. The Law

You can leave your estate to whoever you choose

The judgment opens with the starting point. English law "recognises the freedom of individuals to dispose of their assets by will after death in whatever manner they wish" [1]. There is no automatic right for children to inherit [1].

The Inheritance Act 1975

That freedom has a limit. Since 1938 the law has let a limited group of people ask the court to change what a will (or the rules on dying without a will) leaves them [1]. The current law is the Inheritance (Provision for Family and Dependants) Act 1975. The people who can claim include spouses and civil partners, former spouses, cohabitants, children of any age, and anyone the person who died was supporting [2].

The question for the court is whether the will makes "reasonable financial provision" for the person claiming [12]. What that means depends on who is asking.

• A husband, wife or civil partner can claim what is reasonable in all the circumstances, whether or not they need it for their maintenance [12].
• Everyone else, including adult children, can claim only what is reasonable for their maintenance [12]. That is "a deliberate legislative choice" which reflects the importance English law gives to the freedom to make a will [13].

What "maintenance" means

Maintenance is about money for "the everyday expenses of living" [14]. It is not a share of the inheritance, and it does not stretch to everything it would be nice to have [14]. It is not limited to bare subsistence either, and it can be paid as a lump sum [15]. Housing can count as maintenance. But the power is "to provide for maintenance, not to confer capital". So housing is more likely to be provided as a right to live in a property for life, rather than as an outright gift of it [15].

The test is objective

The court does not ask whether the parent acted reasonably. It asks whether, looked at objectively, the will makes reasonable financial provision [16]. The two questions can give different answers. A parent can act perfectly reasonably and still leave a child without reasonable provision, for example where the child later falls seriously ill. And a parent can act unreasonably without the child having any claim, if the child does not need maintenance [17].

Need is not enough on its own

For an adult child, need is "a necessary but not a sufficient condition" [19]. Something more than being the person's child is needed, and that is often called a "moral claim" [20]. A long estrangement can be a reason why need alone does not justify a claim [21].

The court must weigh the factors listed in section 3 of the 1975 Act. They include the needs and resources of the person claiming and of the beneficiaries. They also include any obligations the person who died had, the size of the estate, any disability, and any other relevant matter, including conduct [60]. In practice the court asks two linked questions. Did the will make reasonable financial provision? If not, what provision should be made now [23]?

When an appeal court can step in

These decisions are "highly individual". The trial judge's order should be overturned "only if he has erred in principle or in law". An appeal court should never interfere just because its own judges might have reached a different answer [24].

3. Applying the Law to the Facts

Five decisions, three answers

District Judge Million found that the will did not make reasonable financial provision for Mrs Ilott. He awarded her £50,000, limited to reflect the long estrangement and the fact that she had no expectation of inheriting [26] [35].

Mrs Ilott appealed, asking for more. The charities cross appealed, arguing she should get nothing [26]. In 2009 the High Court agreed with the charities [26] [65]. In 2011 the Court of Appeal reversed that, holding that the District Judge had asked the right question [61]. The amount went back to the High Court, which upheld the £50,000 [27].

Mrs Ilott appealed again. In 2015 the Court of Appeal held that the District Judge had made two errors of principle [29]. It replaced his award with £143,000 to buy her rented home, plus an option to draw a further £20,000 [28]. It structured the award so that, as far as possible, the family's benefits would be preserved [30]. The charities appealed to the Supreme Court.

The Supreme Court: the first judge made no error

The first alleged error was that the District Judge had cut the award for the estrangement without saying what it would otherwise have been. The Supreme Court rejected that. The Act "requires a single assessment" of reasonable provision in the light of all the factors [34]. It does not require a judge to set a hypothetical figure and then add or subtract from it [34]. The estrangement was one of the two dominant factors in the case. The other was Mrs Ilott's very straitened financial position [35].

The second alleged error was that he had not worked out the effect of the award on the family's benefits. That was rejected too. He had addressed the benefits point twice, and neither conclusion was wrong to Mrs Ilott's disadvantage [38]. Nor was the award of little value to her [39]. The family badly needed to replace essentials: white goods, carpets, curtains, and worn out and broken beds [40]. Spending on those things "is not such an indulgence; rather it is the maintenance of daily living" [41]. Spending part of the award that way would also keep the family's savings below the £16,000 limit for housing and council tax benefit [41].

Her mother's wishes, and the charities, still counted

The Supreme Court said the Court of Appeal's order gave "little if any weight" to the 26 years of estrangement or to Mrs Jackson's "very clear wishes" [46]. It made two important points.

• A will-maker's wishes do not stop counting when someone claims. They "may of course be overridden, but they are part of the circumstances of the case" and must be weighed with everything else [47].
• The charities' position mattered. The Court of Appeal had treated the charities as losing little, because they had no needs of their own. The Supreme Court disagreed. Charities "depend heavily on testamentary bequests for their work, which is by definition of public benefit and in many cases will be for demonstrably humanitarian purposes" [46]. They were the chosen beneficiaries, and did not have to justify themselves on the basis of need [46]. Any award "is at the expense of those whom the testator intended to benefit" [46].

The court also warned against treating these claims as a way of handing out rewards or penalties. Conduct is relevant. But care must be taken to avoid making awards "primarily rewards for good behaviour on the part of the claimant or penalties for bad on the part of the deceased" [47].

Lady Hale: the law gives judges too little guidance

Lady Hale agreed with the result, but used her judgment to raise a wider concern. She described three respectable answers the District Judge could have given: no award at all, an award that bought the family home, or the £50,000 he actually made [65]. She agreed it was "entirely open to him" to make the order he did [66].

Her criticism was of the law itself. It gives "no guidance as to the factors to be taken into account in deciding whether an adult child is deserving or undeserving of reasonable maintenance" [66]. She regretted that the Law Commission had not reconsidered the underlying principles when it last looked at this area in 2011 [66]. That is her view of how the law could be improved. It is not a change in the law.

What this means for you

This case is good news for anyone who wants to leave a gift to charity in their will. Your wishes carry real weight, even if someone later makes a claim.

• You are free to leave your estate to charity. The Supreme Court restored a modest award rather than the much larger one, and recognised the public benefit that charitable gifts in wills pay for [46] [48].
• An adult child's claim is limited. It is for maintenance only, and need on its own is not enough [12] [19]. An adult child who does not need maintenance is unlikely to succeed, even if the parent treated them unfairly [17].
• Write your reasons down, fairly and accurately. Mrs Jackson explained her decision in two letters [6]. Reasons can be taken into account if they are "good and founded on fact" [60].
• Claims have a deadline. A claim must normally be made within six months of the grant of probate, unless the court allows it later. This comes from section 4 of the 1975 Act, not from the judgment.

If you would like to leave a gift to charity, our guide to charity gifts in wills explains how, including the inheritance tax benefits. To understand who can claim against an estate, see our guide to Inheritance Act 1975 claims, and for practical steps, our guide on how to protect your will from a challenge.

We do not act in contested inheritance claims. If you are thinking of bringing or defending one, the Law Society's Find a Solicitor service can point you to a specialist.

This article is for general information and is not legal advice. If you are making a will that leaves a family member out, or leaves a gift to charity, please get in touch for advice on your specific circumstances.

Sources

• Ilott v The Blue Cross and others [2017] UKSC 17 on Find Case Law, The National Archives. Judgment given on 15 March 2017. This is the source of every fact and every quotation in this article, referenced by paragraph number throughout.
• Ilott v The Blue Cross and others [2017] UKSC 17 on BAILII
• Ilott v Mitson [2015] EWCA Civ 797 on Find Case Law, The National Archives. The source for the names of the three charities.
• Inheritance (Provision for Family and Dependants) Act 1975, section 1 on legislation.gov.uk
• Inheritance (Provision for Family and Dependants) Act 1975, section 3 on legislation.gov.uk
• Inheritance (Provision for Family and Dependants) Act 1975, section 4 on legislation.gov.uk
• Find a Solicitor, The Law Society