Many charities are wondering what to make of the decision in the case of Ilott v Mitson, which was decided on 27th July 2015 and has been widely reported.
The case involved a disinherited daughter (Mrs Ilott) making a claim against the estate of her late mother (Mrs Mitson). The court decided to award Mrs Ilott an amount in excess of £163,000 under English law rules relating to awards for maintenance under a 1975 Act of Parliament, thus reducing the amount available to three charities named in Mrs Mitson's will. This was despite Mrs Ilott and Mrs Mitson having been estranged for 26 years, and a letter of wishes existing by which Mrs Mitson instructed her executors to resist any challenges to her will.
Some of the reports on the case suggest that the doctrine of testamentary freedom has been damaged. The implication is that charities which are residuary beneficiaries in wills can now no longer rely on the wording of those wills where disappointed beneficiaries may come out of the woodwork. But is that a fair comment on the case? We think not.
The ability of disinherited spouses and children to make claims on their late partner or parent's estate has existed for some considerable time. The English rules which were relevant to the Ilott case are 40 years old this year. In Scotland, the rules allowing claims to be made (known as 'legal rights') have existed for centuries in one form or another.
Indeed, the Scottish rules may be developed further, with possible changes to broaden the extent of claims in the pipeline. While legal rights claims are presently limited to moveable property, there is the potential for this to be expanded to include land and buildings too, if recent Scottish Law Commission suggestions are enacted by the Scottish Parliament. This could limit further the amount which charities receive from some wills, but this is a development of existing rules rather than the imposition of an entirely new risk.
There is nothing new about claims against estates by disappointed or disinherited spouses or children. The law has allowed such claims for some considerable time. The floodgates are not forced open by Mrs Ilott's case, and charities can take some reassurance from that fact. But an awareness that claims can and do arise is essential if charities are to appreciate fully the circumstances in which they will or will not inherit all that they anticipate.