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.