Wed | Oct 18, 2017

Mother unable to disinhert adult child

Published:Monday | August 3, 2015 | 12:00 AM

Melita Jackson has probably turned in her grave since the English Court of Appeal's decision four days ago in the case of Ilott v Litson and Others [2015] EWCA 797. The case involved a 10-year challenge mounted by her only child, Heather Ilott, to obtain maintenance from her mother's estate.

The Jacksons got married in 1956 and, three months prior to Heather's birth, Mr jackson died in an accident. In 1978, when Heather turned 17, she left home without her mother's knowledge, to live with Nicholas Ilott.

They got married in 1983, and the marriage produced five children. For 26 years, until her death in 2004, Heather and her mother never reconciled.

According to Mrs Jackson's will, subject to a legacy of £5,000 in favour of the BBC Benevolent Fund, her entire estate which was worth 486,000 was to be divided between The Blue Cross, the Royal Society for the Protection of Birds and the Royal Society for the Prevention of Cruelty to Animals. There was evidence that she had any connection to the charities during her lifetime, and the will made no mention of any family member.

Heather relied on the provisions of the Inheritance (Provision for Family and Dependants) Act, 1975 to bring her claim. Under that act (as in Jamaica), there are some persons, including a child, who are entitled to claim that reasonable financial provision has not been made for them under a will.

Although she was an adult child, Heather had serious financial constraints, and after reviewing several factors outlined in the act, the court found that the provisions of her mother were not such to make reasonable financial provision for her.

At first instance, Heather was awarded 50,000. She failed on the first appeal from that ruling, but succeeded on the second appeal.

The decision, which is being hailed as a landmark ruling, raises some questions about whether testamentary freedom is being eroded, but Lady Justice Arden rationalised the decision in the following ways:

1. "... Parliament has entrusted the courts with the power to ensure, in the case of even an adult child, that reasonable financial provision is made for maintenance only ... that limitation strikes the balance with the testamentary wishes of the deceased whose estate is used for the purposes of making an award, at least in this case where there is no other claimant apart from the Charities. They have no demonstrated need or expectation."

2. "[the appellant is] the only child of the deceased, and she was deprived of any expectation primarily because Mrs Jackson had acted in an unreasonable, capricious and harsh way towards her only child."

3. On the issue of estrangement, she said,"responsibility for estrangement is difficult to quantify. I do not consider that on the facts of this case the estrangement ought to deprive the appellant of an award, or even substantially to diminish it ...".

4. The appellant, whose annual income was found to be £4,665, "lived within her means and it would penalise her unfairly if the fact that she did so meant that the court found that she did not need an award." Her resources, "even with state benefits, are at such a basic level that they outweigh the importance that would normally be attached to the fact that the appellant is an adult child who had been living independently for so many years."

5. "What the court has to do is to balance the claims on the estate fairly", which meant that the fact that charities had no demonstrated need or expectation was weighed against Heather's obvious need to continue to enjoy state support while benefiting from her mother's estate.

In the end, a sum of £143,000 was awarded. That was equivalent to the cost of acquiring the property in which Heather lived, plus the reasonable expenses of acquiring it, as well as a further sum of £20,000 to provide for a very small additional income to supplement her state benefits.

Does this decision leave testamentary freedom intact?

 

- SherryAnn McGregor is a partner and mediator in the firm of Nunes Scholefield DeLeon&Co. Please send questions and comments to lawsofeve@yahoo.com or lifestyle@gleanerjm.com.