It has been a long established principle that able bodied adult children written out of their parents' wills are unlikely to succeed in claiming against their parents' estates under the Inheritance (Provision for Family and Dependants) Act 1975.
Last year, however, the Court of Appeal, in the case of Ilott v Mitson, introduced a wrinkle to this principle by awarding an able bodied adult child a significant lump sum from the estate (even though the will was professionally drafted to specifically exclude the child and was supported by a detailed letter of wishes explaining the deceased's reasoning).
The Court of Appeal has by no means rewritten the rule book. Instead, it appears to have established that applicants in poor financial circumstances should be viewed in a similar position to the elderly and those with disabilities (i.e. in that they are likely to have greater needs than those who are well off).
No doubt the Court's approach will give disappointed adult children new hope. However, it seems that the charities that lost out in this case are to ask the Supreme Court to reconsider the matter.
I am a strong advocate of testamentary freedom but equally agree with the logic behind the Inheritance Act. Nevertheless, I do not believe the Act was designed to be used in this way and I hope the Supreme Court will reverse the position.
It is inevitable that cases of this nature will arise in the future but, generally speaking, with carefully considered advice and planning it should be possible to minimise the risk of such claims (and the huge costs incurred in fighting them).
The charities have now obtained leave to appeal to the Supreme Court. The Supreme Court is to consider whether the EWCA's approach to maintenance – based on whether the claimant's current living standard was sufficient – was wrong. It will also decide whether the EWCA was wrong to structure its award such that Mrs Ilott would keep her entitlement to state benefits.