Every year, millions of pounds gets left to charities via wills. Whereas this money is often well received and greatly needed, a recent legal case has highlighted the complications that can arise from this kind of bequest. Charles George, wills, probate and trusts solicitor at law firm Rothera Dowson, examines the case of Ilott v Mitson and its implications for charitable organisations across the country.

Ilott v Mitson is a Court of Appeal decision under the Inheritance (Family Provision) legislation made earlier this year. Before looking at the case in any detail, it is important to understand the history surrounding inheritance.

Until 1938 there was complete testamentary freedom under English law, meaning that you could basically leave your money to whomever you wanted. However, for the last 70 years, this right is no longer unqualified.  

Parliament enacted Family Provision rules in 1938 to protect wives, unmarried daughters, sons under 21, and disabled children from being cut out of capricious wills. Parliament later went on to widen the class of applicants to cover all children and most cohabiters, whether dependent or not.

In Ilott v Mitson the court had to decide if 70-year-old Melita Jackson’s Will had made reasonable financial provision for the maintenance of her only child Heather Ilott.

Their relationship was not a good one and mother and daughter had not been in contact for a number of years. When she died, Melita left the bulk of her £486,000 estate to three animal charities - The Blue Cross, RSPB, and RSPCA – having had no previous evident connection with any of them.

The test that the court had to apply is not a subjective one, so it was not a case of questioning if the mother acted reasonably, unreasonably or out of spite. Instead, the court had to ask: “Did Melita’s will make objective, reasonable financial provision for this claimant from her estate?”. They also had to consider the fact that Heather Ilott was living off state benefits at the time.

The case has involved three trials. In the first instance the District Judge decided that leaving her nothing was not “reasonable provision” and he ordered the charities to hand back £50,000 between them to cover her reasonable future maintenance needs. This meant that the charities were still able to keep a healthy 90 per cent, and without more, the charities would have accepted this judgment.  

Wanting more, Heather appealed to the High Court, with the three charities cross-appealing at the same time. The High Court ruled that the District Judge had asked the wrong questions, and dismissed the claim, putting Heather’s inheritance back to zero.  

So, Heather appealed again. This time the Court of Appeal allowed the appeal, saying that the first Judge had in fact asked the right questions, and answered them correctly. For technical reasons they have now referred the amount of the award back to another High Court Judge to rule on, strongly encouraging all sides to reach an agreement to keep the costs from getting out of hand.

The charities were obviously concerned about the implications of the Court of Appeal’s decision for the charitable sector, and applied to the UK Supreme Court for permission to argue a full appeal in the highest court in the land. But the Supreme Court has recently said “No”.