Illott V Mitson [2015] – The End Of Testamentary Freedom?

Earlier this year the Court of Appeal made a ruling that shocked many, both inside and outside the legal profession.

The facts

Heather Illott had been estranged from her mother, Mrs Jackson, for 17 years. When Mrs Jackson died in 2004, she left a legacy of £486,000 to various animal charities. Mrs Jackson had no connection with the charities, yet still left her estate to them.

The relationship between Mrs Illott and Mrs Jackson broke down when Mrs Illott left home to marry her husband. There were attempts at reconciliation between the mother and daughter, but none had been successful.

The ruling

In the court’s ruling, Mrs Jackson was described as acting in an “unreasonable, capricious and harsh” way towards her only daughter. The court suggested that the reasoning behind Mrs Jackson’s Will was to prevent her daughter benefiting, rather than there being any real desire to help the charities named.

Mrs Illot was able to apply for a financial award under the Inheritance (Provision for Family and Dependants) 1975. This enables a child to ask a court for reasonable financial provision if the Will has not provided this. Under these rules there is no distinction between a minor and an adult child. This position has been enforced in the case law.

The end of testamentary freedom?

News coverage of the decision to award Mrs Illott sufficient money to purchase her home through the Right to Buy scheme focused on the limitation of testamentary freedom – that is, the ability to distribute your assets however you wish in your Will – and the position of the charities concerned.

There have been fears that the ruling could potentially reduce the right of testamentary freedom that is embedded in the law of England and Wales. Press reports characterised the ruling as ground-breaking, suggesting it will affect how Wills are written and make subsequent applications under Inheritance (Provision for Family and Dependants) 1975 easier to prove.

In reality, this case has not changed the law, although it may make testators more wary of making provisions that may appear spiteful and particularly harsh to those who may have expected to inherit. The overall position, however, has not been drastically altered. As with previous case law, each situation will be judged on its own facts. In Mrs Jackson’s case, the Court of Appeal did not look favourably on her position.


Testamentary freedom does exist, although as we have seen, it is not absolute. The Inheritance (Provision for Family and Dependants) 1975 allows a balance to be struck between testamentary freedom and provisions for those deemed by the courts to require assistance. The law strives to find a middle ground between giving a person the right to dispose of their estate as they seem fit and making sure those who are dependent on the testator are provided for.

The court is there to draw a line in the sand where a Will becomes spiteful and unreasonable, as it was adjudicated to be in Illott v Mitson. The court’s position, however, remains the same, each case being judged specifically on its own facts.

A testator’s freedom has not been limited, but a testator may wish to be mindful of making provisions that may seem unreasonable and malicious in excluding potential child beneficiaries. A testator remains free to draft a statement to their executors explaining the reasoning for excluding certain beneficiaries, which could support his or her argument should the Will be contested. But Illott v Mitson will not bring the chaotic end to the doctrine of testamentary freedom that many have predicted.

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