Following the Supreme Court’s decision in March of this year in Ilott –v- The Blue Cross & Others when it was thought that the principle of testamentary freedom had been bolstered, His Honour Judge Saffman in Leeds County Court has awarded an estranged daughter £30k of her deceased father’s £240k estate, despite the fact that he made it clear he had disinherited his children in his Will.
The earlier ruling of the Supreme Court had established that “it is not the case that once there is a qualified claimant and a demonstrated need for maintenance, the testators wishes cease to be of any weight. They may, of course, be overridden, but they are part of the circumstances of the case and fall to be assessed in the round together with all other relevant factors.”
Despite the daughter having no contact with her father for several years before his death and the deceased having left a letter explaining why he was disinheriting his 3 children and leaving his entire estate to his friend, HHJ Saffman determined that the daughter’s wish to complete a veterinary course was a ‘maintenance cost’. The Judge was presumably satisfied that the evidence presented in the case was sufficient for the Act to prevail as against the wishes of the deceased.
A half sibling of the daughter, who was unable to work through ill health, was similarly successful having also made a claim under the Act, receiving a settlement of £22k.
This means that for now at least, the new fee structure will not come into force in May as previously planned. The current fee structure will remain in place which is £155 for solicitor applications and £215 for individual applications in all cases for estates that are larger than £5,000. There will continue to be no fee if the estate is below £5,000.
The new fees would have been determined by the size of the deceased’s estate on a sliding scale and could have been as high as £20,000 in some cases.
Pinney Talfourd has been closely covering this issue as the new fee structure was due to bring about a sharp increase in Probate fees for applications made after 1 May 2017.
The newly proposed fee structure for probate fees was recently reviewed by a Parliamentary Committee to consider whether it was a legitimate fee increase or whether it effectively amounted to a tax. The concerns raised were that if it did amount to a tax then it would be unlawful as the Lord Chancellor does not have the authority to introduce a tax without the consent of Parliament.
Despite these concerns, the Lord Chancellor announced that the Ministry of Justice would go ahead with the new fee structure, until today when it was announced there would be not be enough time to pass the new laws prior to general election.
You may have read our recent news article about the government’s proposal to increase the fees charged for issuing a Grant of Probate up to £20,000.
The new fee structure has been imposed as a Statutory Instrument, a form of secondary legislation, meaning it is not subject to Parliamentary scrutiny.
Since the announcement that the new fee structure would come into force in May 2017, a Parliamentary committee (the joint committee on Statutory Instruments) has raised concerns that the proposed fees are ‘disproportionate’ to the service provided and therefore could be seen as amounting to what critics are calling a ‘death tax’.
The significance of the concerns raised is that Lord Chancellor does not have the power to impose taxes without the consent of Parliament which must be embodied in statute and expressed in clear terms.
However, despite the criticism from the joint committee, the Lord Chancellor has stated that the fee increase will go ahead as planned unless Parliament formally intervene on the basis of the concerns raised by the joint committee.
The Supreme Court has handed down judgment in the case of Ilott –v- The Blue Cross and Others, the first case under the Inheritance (Provision for Family and Dependents) Act 1975 to reach the Supreme Court.
The leading judgment is given by Lord Hughes and the case deals with the claim of an adult child pursuing an inheritance claim where the deceased has failed to make any testamentary provision for them.
The appeal arises out of a claim for reasonable financial provision brought by the daughter, Mrs Ilott, against the estate of her mother, Mrs Jackson. They had been estranged for approximately 26 years before Mrs Jackson’s death in 2004. Mrs Ilott left home at 17 and lived with her husband and five children in receipt of benefits. In her last will of 2002, Mrs Jackson left the majority of her estate to various charities and made no provision for her daughter. This decision had been reflected in earlier Wills by Mrs Jackson and Mrs Ilott had no expectation of benefitting from the estate.
At first instance, the Judge awarded Mrs Ilott £50,000. The charities challenged the award as did Mrs Ilott arguing the sum was too low and it deprived her of her means tested benefits. On appeal, Mrs Ilott was awarded £143,000 to buy the house she lived in and an option to receive a further £20,000 in two instalments. The Charities appealed.
The Supreme Court has held that the District Judge did not make the errors on which the Court of Appeal relied to alter his award. Referring to the 1975 Act the court must consider all factors within section 3 of the Act so far as they are relevant. For an applicant other than a spouse or partner, reasonable financial provision is limited to what it would be reasonable for maintenance only and does not represent any or everything which is desirable, nor is it limited to subsistence level.