A brief look at Professional Negligence claims in the wake of the Ilott v Mitson Inheritance Act decision

There has been quite a furore in the news and on  social media over the controversial decision in Ilott –v- Mitson, a Court of Appeal decision that was handed down on 27th July 2015 ([2015] EWCA Civ 797) which saw a claimant’s award in an Inheritance Act claim significantly increased.

The facts of the case are relatively simple: Mrs Jackson had an estate worth about £500,000.  When she prepared her Will, she left the lot to charity with no provision for her daughter, Heather Ilott. She made it clear that she did not want anything to go to her daughter.  When Mrs Jackson died in 2004, Ms Ilott challenged the Will under the Inheritance Act on the basis that she was a “child of the deceased” and that “no reasonable financial provision” had been made for her.

There has been a history of cases dealing with what constitutes ‘reasonable financial provision’.  It had been rare for the courts to allow a Will to be varied to make a payment to an adult child until relatively recently. The Courts traditionally took the view that adult children are unlikely to have financial needs when they have the ability to work.  However, the law has evolved and adult claims under the Act are now common. Section 3 of the Inheritance (Provision for Family & Dependants) Act 1975 sets out the criteria that the Court needs to take into account when determining a claim. It includes the financial needs of the proposed applicant and other beneficiaries, as well as any disability or conduct of the applicant.

I won’t go into the specific details of the Ilott Inheritance claim as the purpose of this article is to look at the professional negligence consequences, but I will add a brief comment here.  This case has really hit the headlines with many people questioning whether a testator now has any free will in distributing their estate and whether we are now staring down the barrel of a French style inheritance system of forced heirship.  Personally, I think this is alarmist. Just because Ms Ilott’s claim was successful it doesn’t mean that the floodgates have opened to allow any adult child to seek provision, irrespective of their needs and resources.  It must be remembered that Ms Ilott was in receipt of state assistance and living in social housing.  Looking at her financial needs, the purchase of a home would provide her with greater security.  Secondly, we must compare her circumstances with the financial needs of the other beneficiaries; three animal charities (Blue Cross, RSPB and RSPCA) who would continue to receive funding through alternative means so they were not financially dependent on the legacy.  Finally, evidence was received by the Court that prior to making the Will, Mrs Jackson had not had any involvement with any of the charities. 

So, on to professional negligence.

The phones here at Slee Blackwell have been ringing off the hook with people making enquiries about whether they can bring a claim against a solicitor for previously advising that an adult inheritance claim could not be made. 

The test for bringing a claim for professional negligence is the “reasonably competent professional” standard set out in the case of Pride Valley Foods –v- Hall & Ptnrs (Contract Management) 2000 Const LJ 424.  This case states that a Court should be “slow” to find a professional negligent if another professional, with similar qualifications and experience would have acted in the same manner. 

So, we need to look at what that reasonably competent professional would have done at the time of the alleged negligence.  Before the latest Ilott decision, many solicitors would have been considerably less gung-ho that they probably will be going forward.   We therefore need to look at the circumstances in which the advice was given and the relative merits of the claim set against the criteria contained in s3 of the Act. Crucially, that advice must have been ‘wrong’ in terms of what the law was prior to the latest Ilott decision, rather than what the position is now in July 2015 following the court of Appeal’s verdict.

Prospective professional negligence claims therefore need to be appraised on a case by case basis.

If you feel you have a claim for professional negligence, please do not hesitate to call and speak to EMMA SLADE or to DAVID PAULL. Alternatively, if you would like to bring an Inheritance claim then email us now or  ask to speak to Naomi Ireson.