Illot v Mitson – The Case Facts

The facts of Illot v Mitson:

Mrs Heather Illot was the daughter of Mrs Melita Jackson. Her father had died in 1960 in an accident while working for the BBC. The accident occurred when Mrs Jackson was pregnant with her only child, Heather. Mrs Jackson brought up her daughter as a single parent. The court heard that Mrs Jackson received a sum from the BBC in compensation for her husband’s death, which she used to pay off the mortgage and then worked to provide for herself and her daughter.

At age 17 Heather met Nicholas Illot. Her mother disapproved of the relationship and eventually after many arguments Heather ran away from her home to live with Mr Illot’s family. She later married him and together they had five children. The relationship lasted, albeit without much money, and they claimed state benefits to support the family’s standard of living. Despite three attempts at reconciliation Mrs Jackson was not prepared to accept her daughter back into her life. In fact Mrs Illot was not reconciled with her mother over 26 years until her mother’s death.

Heather Illot was at all times throughout her life financially independent of her mother. She did not suffer from any form of disability, either mental or physical. Although she accepted that she was capable of working she made the conscious decision to stay at home and bring up her family, and after the children left home she continued to stay looking after her home.

The charities that Mrs Jackson chose to benefit were not organisations that she knew. They were the Blue Cross, the RSPB and the RSPCA. No promises were made to the organisers of these charities – they were simply chosen as a preference to leaving a bequest of any kind to her daughter.

When giving instructions for her will Mrs Jackson wrote side-letters explaining her decision not to leave anything to Heather and in addition requested her executors (Messrs Mitson and Lane) to defend any claim that her daughter might bring against her estate.

The tortuous path leading to the Court of Appeal hearing [2015] EWCA Civ 797:

An understanding of the court’s process in reaching its decision can be found by reading the Court of Appeal judgement. The judgement set aside the original order, the court decided to re-exercise its discretion and review the quantum of the financial order made for Mrs Illot for reasonableness, see below Illot v Mitson [2015] EWCA Civ 797.

The progress of the case through the lower courts:

Mrs Jackson dies on 29 June 2004 aged 70 leaving an estate with a value of £486,000. Immediately Mrs Illot found out that she would not receive anything from her mother’s estate she made a claim against the estate under the Act.

At first instance in 2007 District Judge Million made an award of £50,000 for Mrs Illot. The award was made on the basis that in the judgement of DJ Million Mrs Jackson had not made reasonable financial provision out of her estate for her daughter.

The irony of that award was that the amount that Heather would receive out of the £50,000 was to be AFTER the charities had been paid their trial costs. This was because the charities had collectively offered Heather a settlement before the 2007 trial following a failed mediation, which she had turned down. Heather was betting that the court’s final award would be more than the amount offered by the charities in their out-of-court settlement.

The award was in fact not sufficient to compensate Heather for the loss of state benefits that would result from receipt of the award!

In 2009 Mrs Illot appealed to the High Court seeking a greater award amount, while the charities lodged a cross-appeal seeking an order that Mrs Illot’s claim should fail entirely. The judge, Eleanor King J, decided to hear the charities’ cross-appeal first and ruled that the conclusion of the “learned DJ Million erred in law”.

The Judge explained that the DJ had asked himself the wrong question in deciding whether reasonable financial provision had been made for the appellant Mrs Illot. The analysis should not be whether the deceased has acted reasonably; but whether on an objective basis, having taken into account all the factors in s3 I(PF&D)A 1975 of the Act, the resulting provision is of itself unreasonable.

King J went further to say that to require the testator to apply a subjective test (as decided by DJ Million) and not an objective test would be to undermine the basic premise that a UK citizen has “testamentary freedom”: furthermore there is no concept of “forced heirship” in English law. It seemed to her Ladyship that “the learned judge (DJ Million) was so concerned with the rights and wrongs of the attempts at reconciliation that he asked himself the wrong question”.

The conclusion was that the charities’ cross-appeal was ruled in their favour and Mrs Illot’s appeal against the quantum of the DJ’s award was not even heard, with the effect that the £50,000 award was overturned and Mrs Illot would receive nothing.

Clearly Heather Illot was not prepared to accept a £nil award and in 2011 she appealed the High Court’s decision bringing a second appeal to the Court of Appeal. The Court of Appeal found in her favour and reinstated DJ Million’s original award for £50,000.  The three Appeal Court judges gave the following reasons:

Paraphrasing the judgement of Sir Nicholas Wall, the President of the Family Division: “it is plain that DJ Million did ask the right question and King J was wrong to find that the DJ had erred in law, furthermore the DJ was not under an obligation to “balance” the s3 I(PF&D)A1975 factors or to explain why the combination of factors under section 3 led to the conclusion that no provision (award) was unreasonable”

Lady Justice Arden agreed with Sir Nicholas and decided that the grounds for the appellate Court of Appeal to intervene did not exist.

Lady Justice Black also agreed with her learned colleagues on the appellate bench.

The Appeal Court’s conclusions left the law in a very confused state. S3(5) I(PF&D)A1975 makes quite clear that it is the facts that are known at the date of the hearing that the court must weigh up and use for the basis of their conclusion of whether reasonable financial provision has been made – not what the testator had decided. Even her Ladyship LJ Black would have appeared to have been somewhat confused as to the requirement to “balance” the requirements laid out in s1 I(PF&D)A1975 a) through to g) when articulating for the benefit of the parties in a particular case (and for practitioners) how the value judgement should be made on a given set of facts.

The Court of Appeal restored the order of DJ Million and directed that the question of the quantum of the award should be sent back to the High Court. In March 2014 the case was heard by Parker J who dismissed the appeal from that order leaving the £50,000 award standing.

Mrs Illot then sought a further appeal hearing by the Court of Appeal in order to decide whether Parker J should have instead set aside the decision by DJ Million for error. And if the Court of Appeal were to agree, would the court re-exercise its discretion and decide on the all-important question of whether reasonable financial provision can and should be made for Heather’s maintenance relieving pressure on her everyday expenses WITHOUT affecting her state benefits.

The most recent outing to the Court of Appeal [2015] EWCA Civ 797:

The hearing of the Court of Appeal took place on 3 July 2015 with Lady Justice Arden, Lord Justice Ryder and Sir Colin Rimer sitting. Lady Justice Arden had previously heard Mrs Illot’s first appeal in 2011 to the Court of Appeal.

In her conclusions her Ladyship held that the analysis by DJ Million that led to his conclusions was not correct in law and should be set aside. One of the reasons that led to her conclusion was the loss of state benefits as a consequence of the award. The amount of income lost by Mrs Ilot as a consequence of DJ Million’s award would be greater than the amount that could be gained by receiving the award.

The Court of Appeal carried out a review of the award and concluded that reasonable financial provision on the facts of the case as presented to the court at the time of the hearing would be i) a sum that would enable Mrs Illot to purchase her home (£143,000) AND ii) a further sum of £20,000 from which to meet her income needs. By expressing the award in these terms Mrs Illot’s state benefits were preserved.