Please Can The Law Stop Moving, It’s Making Me Dizzy. Wills And New Cases.

Please can the Law stop moving, it’s making me dizzy. Wills and New Cases.

In many of my Blogs over the years, I have tried to emphasise the importance of making your Will.

And that was my advice in spite of the recent case of Ilott v Mitson link here – the case where a Mother left a fortune to animal charities and nothing to her Daughter.

And the Judge overturned it. Because the Mother was unreasonable, according the judge.

This was a case where Mother’s Will was properly made, prepared by her lawyers. Mother had thought about its terms and her Will accurately reflected her clear wishes. A case where Mother and Daughter had been estranged for years. The Mother had not been making any financial provision for the Daughter during her lifetime.

So I don’t think many lawyers would have predicted the outcome of the case: that the charities would lose the legacy, and the daughter would take a very substantial share of her late Mother’s wealth.

And even if Mother was indeed unreasonable in writing her Will in those terms, well, durr.

Lawyers have been making money out of old ladies bearing grudges for about as long as there have been Lawyers and old ladies. – (“Right, that’s you out of my Will – I’m off to see my Solicitor in the morning”). Perhaps it’s the only fun they get.

But anyway in Ilott, the Mother was not being capricious, she was not changing her Will every week. She had fallen out with her daughter twenty six years before her death, they had been estranged throughout that time, and Daughter had been told very clearly that nothing would be left to her in the Will when her Mother died.

So there’s that, in July 2015.

And this month? The case of Ames v Jones link here

In this case Father also left a Will which excluded his daughter from any benefit. He did not leave his estate to animal charities, but to his wife who is the step-mother of his daughter.

So we know what the Court will do, don’t we? Especially since Father and daughter were not estranged for twenty six years. Indeed, Father had been providing some financial assistance for his Daughter during his lifetime.

So, following Ilott, Daughter got a share of the Estate. Yes?

Not even a bit of it.

In the Ames case the daughter received nothing and now has to pay her own Solicitors (£47,000.00) plus her step-mother’s Solicitors (possibly some £85,000.00).

Why the difference between these two cases?

I think, if I may say so, that the Judges in the two cases felt very differently about the Daughters they were dealing with.

In Ilott, the daughter lived in “straitened circumstances”. She had brought up five children, two of whom were still dependent upon her. Her husband is disabled. She “had never had a holiday, had difficulty affording clothes for the children and was limited in the food she could buy and much of what she had was old or second-hand”.

She gave her evidence in a credible way.

The choice before the Judge was effectively, who gets the money, between her and animal charities? [Bear in mind, the Mother “had no connection with the Charities during her lifetime”.]

Contrast the Ames case – the daughter is described by the Judge:-

1. Danielle was an unsatisfactory witness whom I found to be unreliable. I have concluded that I cannot accept any of her evidence unless it is either independently corroborated or is inherently probable.
2. The aspects of her evidence which I found to be particularly unsatisfactory were that:
3. (1) She repeatedly blamed her solicitor for errors (some of them serious) in her witness statement and for the failure to produce documents which she claimed helped her case. She also blamed ….[..her partner …].. for inconsistencies between her evidence and the financial documents on which her case was based, saying that she relied on him to deal with these financial issues. However, he was not called as a witness.
4. (2) She repeatedly failed to give straightforward answers to questions. I make some allowance for the fact that some of the questions in cross-examination were very lengthy and were in substance submissions to the court, followed by a question mark, but that cannot excuse all the instances of this. I was left with the impression that her main aim in giving evidence was not to assist the court by answering the questions to the best of her ability, but to assist her case by getting across the points she wanted to make. She was not above inventing or embellishing facts if she could see no other way of sticking to her story in the face of other evidence.

Also, in this case the destination of the money was a choice between the unreliable daughter and her sympathetic stepmother, who is unwell and past retirement age.

The Judge concluded – “ [The Daughter] ..is capable of working and has failed to discharge the burden of proving that she is unable to obtain work. I conclude that her lack of employment is a lifestyle choice. That alone is sufficient to defeat her claim”.

I suspect he means – “a lifestyle choice of which I the Judge disapprove”. Per the Ilott case, is having five children not also a lifestyle choice likely to bring financial hardship? Albeit a choice more likely to meet with a Judge’s [and public] approval?

So where are we now?

One daughter, estranged from Mother for 26 years, who learned to manage for herself without any parental support, is awarded a very substantial payment and the Will terms are radically changed. Animal charity gets nothing.

One daughter, not estranged from father, who has [successfully] relied upon him during his life for occasional financial support – is awarded nothing and is faced with a truly whopping payment of legal costs. Step-mother gets the lot. Yes, she needs it, but so did the animals in the charities.

What I do think, and I have said before, is that hard cases make bad law. Ilott was a hard case. The Judge had sympathy and overwrote a perfectly clear Will. But I respectfully submit, it was Bad Law.

The solicitors acting for the daughter in Ames, have read Ilott. They may have thought – Oh Ho, so that’s what the Law is now is it? Go Ahead Daughters – pile in and fill your boots.  But – Oops.

For those of us watching from the sidelines, may I suggest that the case of Ames is a better precedent for anyone thinking of challenging their late Parent’s Will?

Here’s that song Where are we now

As ever, please do call me or Louise here at AtkinsonNotary whenever you have business documentation for foreign countries. Our number, 0113 8160116, and emails to notary@atkinsonnotary.com.

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