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14th December 2016

Ilott v Mitson in the Supreme Court

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The Supreme Court streams its hearings live from its website and  the Contentious Trusts and Probate team tuned in to hear the submissions in Ilott v Mitson!

The Supreme Court streams its hearings live from its website and so the Contentious Trusts and Probate team at Hewitsons were sure to tune in on 12 December where possible, fitting around client commitments, to hear the submissions in Ilott v Mitson!

There were many themes that ran through the submissions which focussed largely on whether the Court of Appeal took the wrong approach to the analysis of the “maintenance standard” when reaching its decision that Heather Ilott should be awarded a capital sum to purchase her Housing Association home.

The suggestion that there should be a strict definition of what constitutes maintenance under the 1975 Act did not seem to find favour with the Judges. It is certainly difficult to see how a rigid definition would be workable given the infinite number of ways in which claims under the 1975 Act can be presented.

There was debate as to whether an award of reasonable provision under the Act by way of maintenance should ever serve to improve a claimant’s standard of living, particularly in the case of an adult where that child’s standard of living has not been detrimentally affected by the death of the Deceased because they were not being maintained by the Deceased. The arguable effect of the Court of Appeal’s order was to improve Heather Ilott’s standard of living for her and her family. They now have a capital asset they did not have previously. Do the Ilott family now have a capital asset as opposed to something that is maintaining them? The suggestion that Heather Ilott could have been awarded a life interest in the property instead was floated.

Heather Ilott’s Counsel submitted that “maintenance” is that which would enable the claimant to meet the requirements of their daily life, that provision of housing is a fundamental part of what is required for maintenance and section 2 is explicit that one of the ways that provision can be made for housing is to award a capital sum or the outright transfer of property assets. Further, that the Court of Appeal were correct to consider Ms Ilott’s absence of pension or other provision to meet her care needs in old age as part of her maintenance needs and to consider whether the award was sufficient and provides maintenance. Their case was that whilst the Court should not desire to provide an improved standard of living, it is not limited to maintaining only the existing standard of living under the Act.

There was interesting debate as to whether charities enjoy any special status as beneficiaries under a Will and whether the outcome might have been different if the beneficiaries had been other family members or dependants. Penelope Reed QC for the charities, submitted that charities do enjoy special status as was reflected in the Court of Appeal’s comment that the charities here had “received a windfall”. It is of course the case that larger charities are often in no position to defend a claim on the basis of their own needs. That was rejected by Counsel for Heather Ilott who submitted that such a comment could equally apply to beneficiaries who were family members and had received an unexpected bonus.

There was much other interesting debate and we look forward to the Supreme Court’s decision when we shall report more fully.

For more information please contact Lucinda Brown, Head of our Contentious Trusts and Probate team on 01223 532721 or click here to email Lucinda.