Free Will: Inheritance and Solicitors’ Negligence

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 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, 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 Inheritance Act are now common. Section 3 of the Inheritance (Provision for Family & Dependants) Act 1975 sets out the criteria that the Court will take into account when dealing with a claim. It includes the financial needs of the applicant and other beneficiaries, as well as any disabilities.

The phones here at Slee Blackwell have been ringing off the hook with people asking 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. This means that a professional person will not be negligent if other professionals, with similar qualifications and experience, would have acted in the same way. 

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 about bringing an inheritance claim.  We therefore need to look at the circumstances in which the advice was given and the relative legal merits of the Inheritance Act claim. Crucially, for the advice to be regarded as negligenet 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, following the court of Appeal’s verdict.

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

How we can help you

If you feel you have a claim for professional negligence, please do not hesitate to call and speak to EMMA SLADE or DAVID PAULL. Alternatively, if you would like to bring an Inheritance Act claim then ask to speak to specialist lawyer Naomi Ireson. If you would prefer to contact us by email then send details of your case to us at [email protected]


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