The Supreme Court’s decision in Ilott

The case of Ilott v Mitson (or Ilott v Blue Cross & Ors since the Supreme Court became involved) has grabbed people’s attention ever since it first hit the newspapers, back in 2011.  

For charities, it has been of particular interest because the beneficiaries involved were the Blue Cross, RSPB and RSPCA.  As a result of this, the questions it raised about a testator’s freedom to choose who benefits under their will, whether a parent has inescapable obligations towards their children even when they are independent adults, and when a long estrangement from a close relative can justify disinheriting them, came to be examined in the context of beneficiaries who, ever since Re Abram in 1996, have been thought not to have any relevant ‘need’ for the purposes of the 1975 Act.

But what does not having ‘need’ mean for charities, in this context?

Until 15 March 2017, the worry was that the Court of Appeal’s 2015 decision in Ilott indicated that bequests to charity could be regarded as merely a ‘windfall’, and therefore more easily overturned.  The Supreme Court has thankfully corrected this: the correct way to look at things is to remember that the beneficiaries named in someone’s will – charitable or otherwise – are there because that person chose them, and that the respect to be shown to the principle of testamentary freedom requires a corresponding level of respect to be shown for that choice.

In short, the law now is that charities named as beneficiaries in wills do not have to justify their inclusion on the basis that they ‘need’ the bequest; their interest flows naturally from the fact that the testator wanted them to benefit.

Of course the Supreme Court’s decision goes much further than that, finally clearing up a number of points that perhaps seemed like common sense but for which we were missing any clear authority.  Will maintenance-standard applicants be awarded a house outright?  Usually not, say the Supreme Court, because the court’s role is not to create new capital bequests but to provide for the applicant’s day-to-day needs, and if that includes a need for somewhere to live, a life interest in a property will ordinarily be the right answer.  Can an applicant necessarily expect an award large enough to meet all their day-to-day needs if they win?  No, says the Supreme Court, and particularly if the applicant’s relationship with the deceased makes that seem overgenerous (eg. if there was a long estrangement, as in Ilott).

The ruling covers other points of detail as well – have a look at the note we prepared for ILM and for our website which picks out the most important extracts – but for charities the main value in the Supreme Court’s approach is in restoring the correct overall emphasis: in a 1975 Act claim the court should be considering how much of their estate, if any, the testator had to leave the applicant (and nobody else), not whether the court considers the applicant a more deserving recipient than the testator’s choice of beneficiaries.

James Aspden
Wilsons Solicitors LLP
T: 01722 427 677