Following the Judgment of Ilott v Mitson & Others handed down on 15 March 2017, this has given rise to a number of legal questions for the profession and has caused those who may have a claim pursuant to the Inheritance (Provision for Family and Dependants) Act 1975, to ask “what does this mean for me?”

Our Facts in Five gives a summary of the current position following the handing down of the Judgment; further information about the Judgment and the history of the case can be found here.

What do I need to know?

The legislation that governs claims under the Inheritance (Provision for Family and Dependants) Act 1975 has not changed. The Act sets out who is eligible to make a claim and also sets outs the extent of maintenance that will be awarded, depending on an applicant’s status.

The Act lists various factors which should be taken into consideration by the Court when arriving at a decision. In the case of Mrs Ilott, it has been held that she is entitled to £50,000 which the Supreme Court has deemed represents such financial provision as it is reasonable in all the circumstance of the case for her maintenance.

How does the decision impact on me?

Adult children still fall within the classes of those eligible to bring a claim pursuant to the Act. The Judgment could be said to highlight the fact that the case of need alone does not give an automatic right to financial provision, when considered alongside other factors specific to the case in hand. This is not however, new. It has always been the position that the factors, as a collective, must be taken into account.

Some focus has also been given to granting ‘life interests’ in property, where it is appropriate to do so, rather than making an order for a lump sum payment. Both of these options have always been and remain included in the Act however, a Court may now give more consideration to the way in which a need for accommodation is met in light of this comment in the Judgment.

What should I do if I think I have a claim?

If you think you may have a claim pursuant to the Act, seeking advice from a solicitor at an early stage is advisable. This gives time to explore the merits of bringing a claim with your solicitor and will allow you to engage in correspondence with the opponent early on. Further, there may be the possibility of exploring alternative dispute resolution. A claim can be brought before a Grant of Representation is issued.

Is there anything else I need to know?

The key message is that all claims are assessed on their own facts. Each case will have circumstances specific to it and it is then a matter for the Court to arrive at a conclusion having considered those circumstances.

Claims under the Act should be brought within 6 months of the date of the Grant of Representation being issued. In some circumstances this period can be extended, but advice should be sought as soon as a claim is contemplated. Claims which are permitted by the Court to be made after the expiration of the 6 month time limit are few and far between.

Who can I speak to?

Wright Hassall’s Contentious Probate Team are well versed in both bringing and defending claims made pursuant to the Act. Martin Oliver Head of Contentious Probate, represented Mrs Ilott in respect of the Supreme Court stage of the litigation.

Members of the team are ranked in Chambers and Partners, the Legal 500 and have The Association of Contentious Trusts and Probate Specialists (ACTAPS) qualification. Further details of the team and their specialisms can be found here.

About the authors

Martin Oliver Partner

Martin specialises in inheritance disputes such as contesting a will and litigation involving wills and trusts. "He has a very good legal brain, an eye for detail and a tactical sixth sense ... "

Katie Alsop Senior Associate

Katie specialises in contested wills, disputed estates and the removal and substitution of executors. Katie also advises on professional negligence claims particularly in relation to the drafting of wills and the administration of estates. With her agricultural background, Katie also takes a keen interest in disputes with an agricultural aspect.