- On Monday 12th December, fresh from their outing in the fields of Brexit, seven Justices of the Supreme Court sat to hear the appeal of the Charities in Ilott v Mitson. The hearing was preceded by reports in the national press, all of which seem to me to have missed the point. I found it astonishing that even in such a reputable newspaper as The Times, a survey could be made of the issues without once mentioning that the task for the Supreme Court was the construction and application to the facts of the Inheritance (Provision for Family and Dependants) Act 1975. Anyone reading the report might be under the impression that that Act had never been passed. It still seems to be the popular view that it is in some way an infringement of the rights of testators to make an award which will involve interference with the bequests in their wills.
- Of course, as anyone familiar with the law knows, the principle that one can so interfere in the circumstances laid down in the family provision legislation, has now been established for almost 80 years. Parliament has repeatedly recognised it is entirely wrong for a testator to dispose of his or her assets without considering the needs of the immediate members of his or her family. Whilst of course the courts do not remake wills, they do ensure that provision is made for the deceased’s dependants. The issues before the Supreme Court were limited to the question of What provision should be made?
- That Mrs Ilott was entitled to provision from the estate of her mother was clearly established in the first decision of the Court of Appeal, Ilott v Mitson  2FLR 170. Following that decision the charities were refused permission to appeal to the Supreme Court. The issue which remains which is now being considered by the Supreme Court is whether the original decision of the District Judge to award Mrs Ilott £50,000 was right and whether by reason of the errors of the District Judge in relation to his assessment of the proper provision to make for Mrs Ilott the Court of Appeal were entitled to set aside his order and award in its place a sum which would enable Mrs Ilott to purchase her home as a sitting tenant together with the sum of £20,000 in effect to tide her over the transition period when she would have no longer been receiving such social security benefits as housing benefit, but will have a full rent to pay for her home together with council tax and the other outgoings.
- To be frank, I still find it difficult to see what great issues were involved in this case which merited the matter to go to the Supreme Court let alone a Supreme Court of seven Justices. The judgment in the Court of Appeal broke very little new ground, save that, without objection, having concluded that the District Judge had been in error, they saved time and money by themselves resolving the outstanding issue of what should be Mrs Ilott’s provision, an approach which struck me as being very much in accordance with modern policy. The one point which I felt was significant in the judgment in particular of Arden LJ was her emphasis on a point which has in practice quite often been ignored, namely that the provision which the court is required to make is a provision not simply for the immediate future but for the foreseeable future, which includes the future of a mature person in old age. In that, her approach was undoubtedly right and in accordance with s.3 (1) (a) of the Act.
- Tempting as it is to discuss all the arguments which were advanced on either side, I shall mention only one controversial point. Arden LJ attached as an appendix to her judgment the material part of the judgment of the District Judge. It is a pity that in the event that she did not include the previous four paragraphs, since counsel for the Appellants sought to argue that the District Judge made his judgment on the basis that the grounds he gave for the reduction of the award in favour of Mrs Ilott were two, namely first, that she had managed her life without any expectancy that she would receive any provision and secondly, that the District Judge took the estrangement between mother and daughter into account in deciding how much she should receive. I challenged the second reason, because the District Judge had expressly found that the primary reason for the failure of the reconciliations between mother and daughter had been the mother’s inability to come to terms with the fact that the daughter had married a man against the mother’s wishes. The District Judge expressly relied only on the lack of expectancy in reducing his award.
- The fact that Mr and Mrs Ilott arranged their lives without any expectancy seems to me to be an entirely inadequate reason for any significant reduction in provision once the court has come to the conclusion that she is in need of reasonable provision from the estate. I prefer the view of Neuberger J, in Re Watson  3FCR 595, 608 “Just because a person manages to live within his or her income does not mean that that income fulfils all his or her “needs” or “requirements”, let alone “reasonable requirements””. The cost of making provision significantly in excess of the basic social security provision which was all Mrs Ilott depended upon would exceed the cost of enabling her to fulfil her fervent desire, to buy her own home as a sitting tenant, so as to avoid paying rent and have the security and the benefit for the future.
- On one issue I would sincerely hope that the Supreme Court supports the view clearly expressed in the Court of Appeal by both Arden and Ryder LJJ, that it was “simply obvious” that if the judge did not understand the effect of his calculations, he should have asked for help from the parties and could indeed have done this after the hearing because he reserved his judgment. Most District Judges are well aware of their powers to seek further information and assistance from those who appear before them and indeed this should be the regular practice in a situation where, as may well happen increasingly in the future, the parties, not being provided with legal assistance, come before the court ill-prepared.
- On one point I have been having second thoughts since the hearing. It was common ground that charities should be treated no differently from other beneficiaries. Of course, that had the implication that where the charities could not demonstrate any need, they were in much the same position as if the beneficiaries were multi-millionaires. In other words, there was no countervailing demand on the estate to the claim of the Claimant. My view is that there is a slight difference and that was well expressed by Judge Roger Cooke in Re Abram  2FLR 379, 395:“Charity is an excellent thing to which to give one’s money and all these charities are highly respectable institutions. But charity is in my view something to which you give your money when you have provided sufficiently for your dependants and fulfilled your obligations and it is not right to treat a testator as having to strike a balance of “Do I leave something to my dependants or to charity”.
- So now we wait for the Supreme Court’s reserved judgment.