FREE BOOK CHAPTER: History and Overview (from ‘A Practical Guide to Inheritance Act Claims by Adult Children Post-Ilott v Blue Cross’ by Sheila Hamilton Macdonald)


2.1 The Ilott Case in the Supreme Court

2.2 History

2.1 The Ilott Case in the Supreme Court

2.1.1 The Supreme Court decision in Ilott v The Blue Cross and Others [2017] UKSC 17 (which from now on I will refer to as Ilott SC to distinguish it from the Ilott cases in the lower courts) is a pivotal point in the development of adult children to make claims against the estate of their deceased parents. For the first time, the highest court in the land looked at the Inheritance (Provision for Family and Dependants) Act 1975 and analysed how the Act is working — with a particular focus on adult child claimants.

2.1.2 It is not by chance that the first ever Inheritance Act case to reach the Supreme Court is one brought by an adult child. Although there have been other points of doubt and conflict surrounding the 1975 Act — the position of cohabitees, for example, or the degree to which an applicant under section 1(e) was being maintained by the deceased — it is the rights of adult children to make claims under section 1(1)(c) and 1(1)(d) of the Act that have caused the most controversy, and many of the practical difficulties. As Hale B points out in her judgment in Ilott SC, the general public have definite, but often contradictory, views about how far an adult child should be able to claim an inheritance from her parent.

2.1.3 Testamentary freedom, or the absolute right to leave one’s property as one wishes, appears to have surprisingly broad support in the UK. There is a strong sentiment that a testator should not be obliged to leave property to family members who have disappointed or wronged her in some way, but is completely free to leave property to those outside the family for whom she feels ties of gratitude or simply affection. The less appreciated difficulty with total testamentary freedom however is that it is also the freedom to be cruel; to be spiteful; to be prejudiced; and to be unreasonable or unjust. As we will see, the Inheritance Act does not prevent testators being any of these things; the Act’s machinery will only operate when the objective result of the spite or injustice is not to make reasonable provision for AC.

2.1.4 Ilott SC preserves the principle of testamentary freedom in two main ways: first, by re-emphasising that the relevant standard is the maintenance standard, and that any changes in the disposition of the estate must be closely linked to that standard. It also re-emphasises that weight must be given to the testator’s wishes, even where, as in Ilott itself, the testator’s expressed wish that the charities should benefit had been, as the original trial judge found, “harsh and unreasonable” towards her only child.

2.1.5 Two members of the Supreme Court give judgements in Ilott SC. Hughes LJ, with whom all of the other members of the Court agree, sets out the Court’s decision on the facts of the Ilott case and gives guidance on the correct approach for future cases. Hale B’s judgement sets out the societal background to the 1975 Act legislation, including the attitudes expressed to adult child inheritance in recent studies, and then identifies significant inadequacies within the Act which make the Court’s decision more difficult. It is noteworthy that this section of the judgment was not unanimous, so the observations made by Hale B did not have total support.

2.1.6 The judgment is therefore split between what we can call the practical and the theoretical. Both are of considerable interest, but for the purposes of this book we are going to concentrate on Hughes LJ’s judgment because it is the one which is of most practical and immediate relevance to us as practitioners.

2.1.7 The Supreme Court decision in Ilott is not revolutionary; on the contrary, it confirms and affirms the existing methods by which the Courts have come to decisions on adult child claims. If anything, it narrows down the scope somewhat, as we will see, but it does not appear to have the effect of overruling any existing judgments. The practical effect of the decision may be seen more in the orders that are made in future under section 2 of the Act than in the question of whether or not any particular claim is valid.

2.1.8 There are six things about Hughes LJ’s judgment to which we should pay particular attention. The first is that he re-affirms the importance of the maintenance standard [see 4.5 and onwards of this book] and in fact rejects the Court of Appeal’s award to Mrs Ilott on the basis that the maintenance standard was exceeded in that award. He notes that the statutory powers under the Act are for maintenance only and “not to confer capital on the claimant” [para 15]: we will look at what this means in practice at 4.5.6]. In respect of the exercise which the Court is carrying out under the Act, he affirms that it is of necessity a value judgment [4.3.6 – 4.3.9] on the part of the relevant Judge, and is a single assessment of reasonable financial provision [4.3.10], which has important consequences for the ability of either side to appeal.

2.1.9 Connected with this, in a number of places in his judgment he rejects what the Court sees as an unduly technical approach to the balancing exercise. A judge is not necessarily required, for example, to go through the relevant factors twice, once at each stage; there is no need to set out some “hypothetical standard of reasonable provision” and then add to it or subtract from it; and in the specific context of the Ilott case itself he makes significant points about the value of the testator’s wishes [6.7.4] and estrangement [6.7.17]. The judgment also deals with the relevance of state benefits [6.3.4] when making an assessment of reasonable provision under the Act.

2.1.10 Although it is still early days, the evidence from cases decided since Ilott SC suggests that all of Hughes LJ’s principles are being taken into account in new cases. The adult child case of Nahajec v Fowle [2017] EW Misc 11 (CC) refers in detail to, and closely adopts, Hughes LJ’s approach. In Ball & Ors v Ball & Ors [2017] EWHC 1750 (Ch), heard on 18–19 July 2017, Ilott SC was not referred to during the trial, but the trial Judge invited submissions on it prior to judgment. The claimants laid stress on four aspects of Hughes LJ’s judgment: the “reasonableness” factor, the fact that a “moral” claim is not essential, the importance of the testator’s expressed wishes, and the relative weight of a long estrangement: the judge considered these factors and endorsed Hughes LJ’s approach. In Nahajec the claimant obtained a modest lump sum; in Ball the claimants received nothing. However, in both cases, there appears to be a distinct shift towards a wider approach to the value judgment and weighing exercises. Nahajec and Ball are considered later in this book.

2.2 History

2.2.1 From the most recent development, let’s look back to the most distant. Between 1837 and 1938, there was in essence nearly total testamentary freedom: a man (and for most of this period, only a man) was entitled to leave his property in his Will exactly as he chose, without recognising any obligations of any kind to his next of kin or dependents. Inevitably, this had caused hardship and in some cases actual destitution. From the mid-1920s onwards, the National Union of Societies for Equal Citizenship (NUSEC), had campaigned for a change in the law. It took the dogged persistence of the President, Eleanor Rathbone, and the Parliamentary Secretary, Eva Hubback, against very considerable parliamentary and professional opposition, to finally achieve the Inheritance (Family Provision) Act 1938.

2.2.2 The 1938 Act however made very limited provision for adult children. As far as sons were concerned, only disabled adult sons were eligible; for daughters, the applicant had to be disabled or unmarried. No person who had been treated as a child of the family but who was not in fact the biological child of the deceased could make any claim at all, leading to some quite substantial unfairness. The 1938 Act did however establish that the relevant standard of provision was maintenance, the lodestar feature which was to remain fixed in the 1975 Act and which as we will see is still causing problems to this day. 

2.2.3 The 1938 Act was replaced in 1975 by the Inheritance (Provision for Family and Dependants) Act. The 1975 Act considerably widened the scope of potential applicants, but it did not specifically provide that adult children were among them: it specified only that any child of the deceased, or a person treated as a child, could apply. Importantly, however, it also extended the definition of “child” to include any person who had been treated as a “child of the family” at section 1(1)(d). In fact it was not until Re Callaghan in 1984 (reported at [1985] Fam 1) that there was an unequivocal finding by a Court that the word “child” in section 1(1)(c) and 1(1)(d) included an adult child, although by that time the application of another adult child in Re Coventry (Deceased) [1980] Ch 461 had already been decided.

2.2.4 How the machinery of the Act works has been clear from its beginnings in 1975, but it has proved difficult to square the operation of the Act with wider concepts about property, inheritance and entitlement. From 1938 onwards, there have been three conceptual problems with family provision on death legislation that the Courts have struggled with: the belief in testamentary freedom, the question of whether or not it is relevant that an applicant under the Act is “deserving”, and the question of what, in every case, the Court should decide is reasonable provision. Ilott SC specifically raises these questions again in the judgment of Hale B and expressly warns that the Act does not provide the tools to resolve the difficulties. For better or worse, whether you are acting for a potential applicant or for the estate, these are issues that you are going to have to grapple with.