Tag Archives: succession

After Ilott

[Apologies – not Legal History. Having a bit of a succession enthusiasm at the moment!]

Not surprising to see press attention on wills, families and charities, following Ilott. The Guardian has a piece about a family aggrieved at the fact that their relative’s will left a large amount of money to a private school: https://www.theguardian.com/money/2017/mar/18/how-1m-inheritance-slipped-family-grasp-challenging-will-heather-ilott

But the explanation of the Ilott case here is not quite right – Heather Ilott was not awarded money ‘ on the grounds that her mother had acted in an “unreasonable, capricious and harsh” way towards her’, but because she qualified under the Inheritance Act for reasonable financial provision. Not the same thing (there is a better explanation lower down in this rather rushed looking article). Also, it’s rather simplistic to say (as anonymous ‘solicitors’ are made to do here) that Ilott in the Supreme Court straightforwardly upholds testamentary freedom. Clearly not the case when the testator did not want her daughter to get anything, and she was awarded £50,000.

There are much more interesting questions which should arise from the juxtaposition of Ilott and this case (will of Sybil Jenazian), in particular whether charity fundraising techniques could possibly amount to undue influence (the private school ran active fundraising campaigns, predictably targeting particular people connected with it: contrast the less specific connection between Melita Jackson and the animal charities in Ilott). There is also the point that this is about cousins  as opposed to mother-only daughter, as in Ilott, so generally a much harder argument for reasonable financial provision.

 

From a narrative point of view, the story here does not really match Ilott very closely: it could be summarised as ‘possibly inappropriate pressure on possibly vulnerable testator’ as opposed to the ‘spiteful charity’ trope seen in Ilott.  There is, however, a definite similarity in terms of the huge amount of ill-feeling generated by inheritance and disinheritance.

 

No longer waiting for Ilott: preliminary thoughts

 

The Supreme Court heard Ilott v Blue Cross [2017] UKSC 17 before Christmas, and has now published its decision in this, one of the biggest cases on succession law in several years:

https://www.supremecourt.uk/cases/docs/uksc-2015-0203-judgment.pdf

It was a case about a will, and, specifically about an adult daughter’s challenge to her mother’s determined efforts to leave her nothing of her (relatively modest) estate. The mother in question, Mrs Melita Jackson, had instead favoured a group of charities, and had left specific instructions that any attempt by her daughter, Heather Ilott, to upset this arrangement should be resisted. Heather did indeed mount a challenge, based on the Inheritance (Provision for Family and Dependents) Act 1975. This allows a range of relations and connections of a deceased person to claim reasonable financial provision from the estate, under certain circumstances.

The case had gone through several stages before this, with judges interpreting the Act, and their own task under it, in rather different ways. While most seemed content to accept that Heather Ilott should be given some sort of support from her mother’s estate, there were varying views as to what sort of an award she should receive – how much, and in what form, and what should it represent?

The (unanimous) Supreme Court decided to allow the appeal of the charities in this case, which, as far as Heather Ilott was concerned, meant that the provision she would be getting from the estate went back to £50,000, the sum fixed on by DJ Million, rather than the substantially higher figure which the Court of Appeal had decided upon.

In real life, Heather Ilott’s loss may not be as large as it appears from these bald facts: the SC judgment makes it apparent that some sort of arrangement has been made between the charities and Heather Ilott, presumably to soften the blow of this decrease in provision. From the point of view of the charities, this was clearly a difficult case to handle, since they risked looking extremely, well, uncharitable in trying to reduce the award made to a woman who was, clearly, in unfavourable financial circumstances. Nevertheless, it was clearly important to them not to concede ground in the area of challenges to money left to them by will, given that this is one of their major sources of income.

The decision itself, although it is in favour of the charities involved, and has been welcomed by the charity sector more generally, is relatively cautious. It is hedged about by the familiar reluctance to define terms, insistence that cases turn on their own facts, and comes complete with a Lady Hale critique of the current state of the law (and the failure of the Law Commission to deal with its problems). It was not to be expected that one case could deal with the genuine and longstanding tensions between a feeling that a person should be able to do as she wishes with her own property, a power extending even after death, and an instinct that there is an obligation to support and maintain particular close relations, if found ‘deserving’ (or at least ‘not undeserving’). (It is often suggested that ‘testamentary freedom’, unaffected by the latter obligation, had a relatively short life-span, but that is to ignore the centuries of exploitation of a variety of devices – particularly, but not only, those involving uses and trusts – to achieve control beyond death in the pattern of succession to land and personal property.) On top of that ancient tension, there are large issues of principle in relation to the relevance of tax and benefits considerations in these sorts of decision, deserving of more rounded and thorough consideration than would be possible on one individual set of circumstances. No doubt both the implications of Ilott itself and the wider issues will be considered in detail by succession law commentators in the coming months.

It has been a long drawn out case for those involved. For those of us watching it unfold, it has been interesting in many ways. The Supreme Court case before Christmas was the first televised SC case I have ever watched (and yes, I did watch it all the way through!), which was quite educational, if not especially dynamic. I have also found it instructive to look at the press coverage of the case. There is a lot of criticism of the deceased mother, Melita Jackson, who is characterised as spiteful and unreasonable. This draws upon comments by counsel, claimant and judges. It may or may not be fair – Mrs Jackson is not around to give her side of the story, or to object to the way in which she has been portrayed. The lack of an opportunity to answer back is inevitable in wills cases, but it can be rather uncomfortable: I find it rather disturbing seeing such one-sided contentions about deceased people (I found the airing of the alleged delusions of a woman with Alzheimer’s in Lloyd v Jones [2016] EWHC 1308 (Ch) particularly sad: I don’t think any of us would like to think that the general public would one day hear the claim that we had had delusions involving aliens, witches, dead people and being burgled or poisoned by Saddam Hussein, and were incontinent). It would also be interesting to examine the comments in Ilott and in comparable cases to see whether certain types of criticism are more likely to be applied to female as opposed to male testators: that’s going on my list of ‘one of these days’ projects. (At least one very gendered ‘below the line’ comment here sums up the case as entrenching ‘the human right to be a b***h’ – their stars, not mine: http://www.legalcheek.com/2017/03/supreme-court-backs-three-animal-charities-over-struggling-daughter-on-benefits-in-a-row-about-her-dead-mums-will/#comment-1009330 ).

It has been interesting to observe the Telegraph, and, in particular the Daily Mail, as they make very apparent the tensions noted above. Although Heather Ilott (despite having claimed various benefits and tax credits over many years, and thus not being the sort of person they usually favour) is generally portrayed in a fairly sympathetic light, there is also a clear concern with testamentary freedom (particularly when defence of testamentary freedom can be combined with a dig at ‘out of touch’ judges: http://www.dailymail.co.uk/debate/article-3178080/MAX-HASTINGS-judges-tell-leave-money-wills.html ), and, when wider conclusions are drawn from the litigation, the reader tends to be cast in the role of testator, rather than badly-off IHA claiman (e.g. http://www.telegraph.co.uk/news/uknews/law-and-order/11766651/Your-will-can-be-ignored-say-judges.html )

(If anyone wants to see a somewhat lower level of commentary, then the ‘below the line’ comments on the Express article on the case are a good (in the sense of predictable and depressing) place to start: http://www.express.co.uk/news/uk/779633/Supreme-Court-rules-award-woman-left-mother-will-charity-payout).

So – lots to think about: certainly in terms of immediate effects, but also in terms of attitudes revealed by the case and its coverage, and in terms of longer historical traditions of allowing and limiting control of property beyond death. No doubt I will be coming back to this.

 

GS 15/3/2017

Further coverage

A couple of days on, we get this in the Guardian: https://www.theguardian.com/voluntary-sector-network/2017/mar/17/charities-court-disputes-contested-wills-melita-jackson?utm_source=dlvr.it&utm_medium=twitter – a condemnation of charities for ‘interfering’ in contested wills. It may be right to say that there are problems with public trust of charities, but it seems harsh to describe the charities’ conduct here as ‘interfering’, since the initial active part was taken by the daughter of the deceased, asking for an alteration in the way in which the deceased’s estate should be shared out, and then asking for a larger share than was awarded at first instance. The article plays down the idea that the case has precedent value – clearly it is very important for charities to know where they stand on the vulnerability of wills which leave them money. It also ignores the fact that there does seem to have been some arrangement to limit the actual impact of the decision on the daughter in the case. It looks to me as if the charities were very well aware of the possible PR issue. Whatever one thinks about the weight which should be attached to testtamentary freedom, this does look like an issue which needed a thorough workout in court, in an effort to sort things out for the future. Whether Ilott has done that is, of course, a different matter…

18/3/ 2017 General message that we should be able to do what we like in our wills in Janet Street-Porter’s opinion piece: http://www.independent.co.uk/voices/melina-jackson-will-charities-rspca-cut-daughter-out-supreme-court-sad-reflection-a7636056.html – though might have been an idea to read the judgment or summary a bit more carefully … suggestion here is that the will ‘stands’ and Heather Ilott gets nothing – the SC just put things back to DJ Million’s conclusion that Heather Ilott should get a lower sum than the CA awarded.

Laws of Ice and Fire: George R.R. Martin, Song of Ice and Fire cycle from a legal historian’s perspective IIB: Succession

Updated version available at: Laws of Ice and Fire: a legal historical look at the world of George R.R. Martin’s Game of Thrones | Bracton’s Sister (bristol.ac.uk)

 

 

Laws of Ice and Fire: George R.R. Martin, Song of Ice and Fire cycle from a legal historian’s perspective

Part II

Substantive Law

B: Succession

Medieval common law (and other medieval legal systems) had somewhat different rules for succession to the throne from those prevailing in relation to land (and different rules again for succession to personal property). There is, likewise, some suggestion of a distinction in the laws of Westeros at the time of the Song cycle between rules for inheritance of land and rules for succession to royal and noble titles, but the matter is not always clearly differentiated. In both sorts of succession, the model which seems to be predominant is male primogeniture, for legitimate children only. The eldest son is regarded as heir to family land, titles and also to such personal property as Valyrian steel swords {I:259 – Tarly family]. There are, however, ways to alter the succession, some local differences, and some disputed issues.

There are signs that there was, in the time before the Song cycle, a less absolute tendency to male primogeniture in Westeros. It is noted, for example that there had been some question of female succession in the Riverlands, though this was rejected [World: 4395], and that Alysanne, sister and wife of Jaehaerys I Targaryen argued with her brother/husband over succession, taking the position that males did not always have to be preferred to females – so that the granddaughter of an eldest son should succeed to Dragonstone in preference to the second son’s heir apparent [World:1637].

At a Great Council held in the year 101 AC (After the Conquest), however, there was a decision that, with regard to succession to the Iron Throne, women were to be excluded. Not only were men to be preferred to women, but women simply were not to be allowed to take the throne, and, furthermore, nor could a woman transmit a claim to the Iron Throne to her descendants [World: 1673, 1703]. This, of course, looks somewhat like the ‘Salic Law’ insisted upon by the French from the fourteenth century, to exclude the descendants of Isabella, wife of Edward II of England. Not everyone accepted this as an ‘iron precedent’, however, and King Viserys I Targaryen declared his daughter his heir, and continued to take this view even when he had a male child with a subsequent wife. Clearly seeing that this might be opposed, this king, like Henry I of England, had tried to ensure that his settlement would be respected by demanding the promises of his nobles, many of whom did homage to the nominated heiress [World: 1797]. As in Henry I’s case, however, such promises did not prevent a civil war over the issue [World: 1823]. The strong ‘no women’ rule seems to have gone by the time of the Song cycle, since it is assumed that Myrcella has a chance of succeeding, and even the pedantic Stannis Baratheon assumes that his daughter Shireen will inherit the Iron Throne which he takes to be his, if he and his wife do not produce male heirs [III:410].

By the time of the Song cycle, it is clear that descendants trump collaterals – so a maester in White Harbor tells Davos that a son must come before a brother (in terms of royal succession: ‘the laws of succession are clear in such a case.’ [V:246]), so that Tommen beats Stannis as heir to the Iron Throne after Robert I Baratheon, assumed father of Tommen, and definitely brother of Stannis, though not, of course if Tommen was shown to be a bastard. The law also provides that the child of the first son took priority over the second son [II:470], and that girls are not barred from succession – just postponed to males of the same rank. Thus Alys Karstark notes that a daughter comes before an uncle [V:591]. As with many actual medieval realms, the existence of agreed inheritance customs or laws does not necessarily stop those with tenuous claims having a go – thus Renly, Robert’s younger brother also tries for the crown. Renly accepts that Stannis has the better claim in law, but calls it ‘a fool’s law’, asking ‘Why the oldest son and not the best fitted?’ [II:435]. He rejects Catelyn Stark’s suggestion for a Great Council to decide who should reign, considering that the outcome should rest on strength, not talk [II:454]. He argues that Robert did not really have a right either, though various arguments based on past marriages to the Targaryens  were made. He argues from strength of numbers {II:320].

A major counter-current to the hegemony of male primogeniture can be seen in the law and customs of Dorne. Under Dornish rules, it is the eldest child who inherits, whether male or female [World: 6893]. Thus, by Dornish law, Myrcella should succeed to the Iron Throne before Tommen [III: 747; IV:48].The Dornish rule that females should be equal to males in inheritance terms is attributed by one Archmaester to a decree of the reign of Gaemon Palehair (allegedly prompted by a lesbian prostitute) [World: 6916], and, more generally, to the influence of the ideas of the ancient people of the Rhoyne, who settled in Dorne, amongst whom women were ‘regarded as the equals of men’ [World: 621, 760]. In Westeros, Cersei Lannister is unhappy with women’s exclusion from power [III:748].

A degree of dissent from the mainstream Westerosi pattern of succession may also be seen in the evidence concerning the Iron Islands. While Theon Greyjoy asserts the rule which would favour his own case, that a woman may inherit [lordship] only if there is no male heir in the direct line’ [II:160], and so tells his sister he is the lawful prince, Asha replies that this may be so by ‘the laws of the green lands’, but ‘we make our own laws here…’ [II:356]. A third view is that of Aeron Damphair, who sees any such fixed succession as ‘green land law’, and demanding (and obtainint) an election, according to The Old Way, rather than a succession to the Seastone Chair [IV:25, 31].

In most of Westeros, legitimacy depends on wedlock, and those born outside wedlock have ‘no name of their own’, [I:17]. Particular simple and nature-based surnames are by custom given to bastards: in the North, for example, they are called Snow [I:17], they are called Rivers in the Frey/Tully lands [I:285], Stone in the Vale, Flowers in Highgarden [I:357], Storm at Storm’s End [II:146].

Proof of bastardy seems similar to the rules of the medieval common law, in that, if there is a marriage, there is a presumption of legitimacy for offspring born to the wife. Thus, Tywin tells Tyrion ‘Men’s laws give you the right to bear my name and display my colours, since I cannot prove that you are not mine.’ [III:52].

As well as the absence of inheritance rights [I:309]. bastards are regarded as in some sense tainted. Thus, seating Jon Snow at table with the royal family might, thinks Lady Stark, be seen as an insult [I:50], and, presumably because of such slights, Jon Snow swears that he will never father a bastard, which is part of his reason for volunteering for the (celibate by oath) Night’s Watch [I:51]. Bastards can, however, be declared legitimate by royal order, as can be seen from the order for legitimation of Ramsay Snow, bastard of Roose Bolton, which was signed by Tommen [III:819]. There is also a suggestion that the Starks have a less rigid view on bastardy than many in Westeros, at least in some respects. Though Eddard Stark’s bastard was given a ‘bastard name’ – Jon Snow – they were ‘not like other men’ in the way in which they treated such children, and Eddard Stark ‘brought his bastard home with him, and called him “son” for all the north to see’ and brought him up at Winterfell with his legitimate children [I:62].

Dorne and the Iron Islands are again somewhat out of line with mainstream Westerosi law on this issue. What is described as a Dornish custom dictates that illegitimacy does not necessarily bar a child from succession [World: 6893, 6916], though Dorne does differentiate the legitimate and illegitimate to the extent that it has the customary name Sand for bastards [III:431].Also less rigid were the rules of the Iron Islands. In the law of the Ironborn, although the children of subsidiary ‘salt wives’ cannot inherit before the children of the principal wife (the ‘rock wife’), they are not wholly excluded, and can inherit in the absence of salt sons (or perhaps children) [World: 5065].

It is not clear to what extent lords may withold an inheritance from the person designated heir apparent by the general law. Tywin Lannister purports to do this, refusing to name Tyrion as heir to Casterly Rock, even though he does seem to be the rightful heir, since  his elder brother, Jaime, is a kingsguard. and his other sibling, Cersei, is postponed to him as she is female. Tywin justifies this refusal on the grounds of Tyrion’s conduct with ‘whores’ [III:52]. Wills of land appear to be allowed [II:474], so that it is presumably possible to escape the strict rules of primogeniture in this context to some extent (and there is no need for devices such as the use, employed in late medieval England for this purpose, and to avoid feudal dues), though exactly how this relates to succession to lordships rather than simply land, is not clear.

If an heir joins the Night’s Watch, or the Kingsguard, he will lose his place in succession [I:260] so this can be used to alter the succession in order to have lands and other property descend to a preferable candidate, as was done by Samwell Tarly’s father, Lord Randyll [ibid.].

Abbreviations

I:          George R.R. Martin, A Game of Thrones

II:        George R.R. Martin, A Clash of Kings

III:       George R.R. Martin: A Storm of Swords

IV:       George R.R. Martin, A Feast for Crows

V:        George R.R. Martin, A Dance with Dragons

World: George R.R. Martin, E M Garcia Jr, L. Antonsson, The World of Ice and Fire: the untold history of Westeros and the Game of Thrones

Number references refer to pages in I – V, but to Kindle locations for World.

 

Gwen Seabourne 27/12/2014