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15-03-17Supreme Court rules in Ilott v. Mitson
Much has been made of the case of Ilott v. Mitson but ten years of litigation came to an end today in the UK’s highest court. Indeed, it was the first time the Supreme Court had been asked to consider a case brought under the Inheritance (Provision for Family and Dependants) Act 1975 (“the Inheritance Act”) and, as a result, we have seen the pendulum swing back in favour of freedom to dispose of our assets to whom we choose. Whilst this principle prevails – known as “testamentary freedom” – in contrast to many jurisdictions which have rules about “forced heirship”, the law continues to recognise the need for certain persons, under the Inheritance Act, to be able to apply to court for reasonable provision if such provision has not been made for them.
The Inheritance Act sets out who is entitled to make an application for reasonable provision. Those eligible include spouses, children and those maintained immediately before death. In order to secure provision from a deceased's estate, the applicant must persuade the court that the will (or intestacy rules, where there is no will) does not make "reasonable provision" for him or her. If the applicant is not a spouse or a civil partner then he or she is only entitled to apply for such provision as is necessary for his or her “maintenance".
If the court concludes that the will does not make reasonable provision for the applicant, the court must then consider what provision to make, having regard to a number of factors including the financial needs and resources of the applicant; the family resources and needs of any other family members or beneficiaries of the will; the size of the deceased's estate; and any obligations or responsibilities owed by the deceased to the applicant. The court may also take into account any other matter which in the circumstances it considers relevant, including the deceased's testamentary wishes (which will usually be recorded in the will or letters of wishes).
Ilott v. Mitson shines a light on judicial interpretation of these factors.
Journey to the Supreme Court
Ilott v. Mitson highlights that it is prudent to consider the likelihood or otherwise of an application under the Inheritance Act being brought. Whilst they can never be excluded entirely, certain steps can be taken to ensure an application is discouraged or, at least, limited in its success.
For more information please contact Andrew Kidd (email@example.com).
Article by Andrew Kidd
Clintons is authorised and regulated by the Solicitors Regulation Authority whose regulations can be found at www.rules.sra.org.uk. Solicitors Regulation Authority number 00045165 Compliance Information