Disinheriting your children: Ilott v Mitson, succession policy and Scottish law reform

I thought I might take advantage of the surprising (to me anyway) media interest in the English Court of Appeal decision in Ilott v Mitson to raise a couple of questions about the current Scottish succession consultation. The key question here is: should parents be able to disinherit their children? Your answer could be: (a) Always; (b) Never; or (c) the very lawyerish In Certain Circumstances.

England plumps for option (c). The default position is that a parent can disinherit their child if they so wish. However, the Inheritance (Provision for Family and Dependants) Act 1975, ss1-2 allows a child to ask the court for money from her parent’s estate where “reasonable financial provision” has not been made for her. The Act lists various factors the court should take into account in determining whether “reasonable financial provision” has been made, and if not, how much money the child should receive to make up for it. That list includes the child’s current and future financial needs and resources, and the needs and resources of any competing beneficiary.

In Ilott, the appellant was the adult child of the deceased Mrs Jackson. Mother and daughter had been estranged for 26 years prior to the death, three attempts at reconciliation proving unsuccessful. Mrs Jackson had left her £486, 000 estate almost entirely to three charities with which she had no particular connection in life – the Blue Cross Animal Welfare Charity, the RSPB and the RSPCA. Her daughter, who by this point had raised five children, lived with her husband in a council house, dependent on benefits.

Awards under the 1975 Act tend to be made to a disinherited child where: (i) the child is under the age of majority on her parent’s death; (b) an adult child has remained dependent on her parent as a result of disability, or; (c) a particular moral obligation is deemed to have arisen, for example, where an adult child has taken care of her parent in old age. The fact that none of these circumstances arose in the Ilott case seems to be the source of the consternation about the decision in the media reports, but the legislation does not restrict awards to these circumstances. The court found an award to Mrs Ilott “reasonable” because of her straitened financial situation, which seemed likely only to deteriorate as she grew older, in combination with the fact the competing beneficiaries – the charities – had no needs and resources to be taken into account. The court did not consider it relevant that part of Mrs Jackson’s estate was made up of money inherited from the appellant’s father on his death, and gave little weight to the fact that Mrs Jackson had been (in the finding of the judge at first instance) “unreasonable, capricious and harsh”. According to Arden LJ, the wishes of the deceased, although obviously relevant, are limited by the discretion Parliament chose to give to the court when introducing the 1975 Act.

The interest of all this for Scotland is that the Government is currently consulting on whether to remove the protection from disinheritance that children in Scotland have enjoyed since the 1300s. As I explained in more detail in another post, children’s current non-discretionary entitlement to one third of their deceased parent’s moveable estate could be replaced, either by a non-discretionary “legal share” of 25% of what they would have received on intestacy, or by an entirely discretionary award available only to dependent children under 18 (or under 25 in full-time education or training.)

I recently had a discussion with my Glasgow colleagues @dotreid, @culbokster, @jilljrobbie and @stephen_bogle about responses to the consultation paper. We asked a lot of the same questions that the media have been asking in relation to the Ilott decision. When should children be protected (or not)? Why? What about the wishes of the deceased? What does this mean for our understanding of “family”? What about intergenerational social justice? (I haven’t seen the media ask that last question yet, to be fair.)

The consensus in our discussion was that there are substantial policy issues surrounding reform of the law of succession that have not been addressed or even acknowledged in the consultation paper. Family law policy in Scotland and the UK recently tends towards the idea that law should facilitate the choice to enter or leave intimate adult relationships, but the parent/child bond is for life. Current low wages and high housing costs mean even fully employed adult children will struggle to save the deposit required to buy a house – does intergenerational fairness require that parents who have benefitted share the wealth of the house price bubble? If adult children can always inherit, should they also take responsibility for the care of elderly parents, perhaps relieving some of the financial burden on the state? Should our succession reforms aim towards social justice more broadly in the same way as our land reform policy arguably does, making it more difficult for wealth to be concentrated in the hands of a small number of families? Should our succession policy be more actively pro-business, taking care to ensure that, whatever the rules, family businesses should not have to be dismembered to ensure satisfaction of inheritance claims?

Whatever view you take on questions like these, it’s hard to avoid the fact that succession policy is an acutely political issue. And yet, avoid it the consultation paper does. The reforms are cast as essentially technical, aiming to simplify the law and make it “fair”, that most nebulous of concepts. It seems unlikely that Mrs Jackson would find the Court of Appeal’s decision fair, but in Scotland, Mrs Ilott’s entitlement would have been automatic.

I think my response to the consultation paper is likely to include a preamble raising this broader policy point: what are we even trying to do here? An answer to that question might help us decide whether Mrs Ilott was deserving, or Mrs Jackson (and the RSPB etc) disrespected.

Impact and the REF: notes from #REFManc15

(Note for readers who don’t work in a UK University: you may or may not know about the Research Excellence Framework, the process by which the Government assesses the quality of research produced by publicly funded Universities in the UK in order to determine how much money each institution should get from central funds. The most recent iteration of this exercise (REF2014) included, for the first time, assessment of the “impact” achieved by each institution’s research – in other words, what use has the research been to users outside of academia? If your research has resulted in the development of a cure for cancer, a significant new piece of legislation, or you are Brian Cox, your impact is 4* (the highest possible). If your impact is published in a journal no-one reads, never to be thought of by anyone outside of academia, your impact is 0*.)

This morning, in my capacity as Glasgow School of Law’s Impact Seneschal (technically Officer, but come on) I attended a conference entitled “Research Impact: Evidencing the REF”, a discussion of the…er, impact of including impact in REF2014 and what might happen re impact on the next go-round, presumably REF2020.

Presentation of the results of HEFCE-commissioned research into the use of impact in REF2014 formed part of the discussion. Catriona Manville at RAND Europe spoke about her evaluation of the impact process at the submissions stage and at the evaluation stage (see the reports here). Jonathan Grant at KCL carried out a “synthesizing” of the submitted impact case studies with the aim of finding out what sort of impacts were being achieved, where and in what disciplines (pilot study reported here, with full report to follow). Steven Hill of HEFCE also gave a presentation, and there was a Q&A session with experts including Michael Pidd, a member of REF Panel C (which is where law is assessed.)

From the discussion, the headline news is roughly as follows:

  • First things first: impact is here to stay. There may be some tinkering changes with the process for the next REF – the impact template may be subsumed within the environment template, for example – but the overall gist will be the same. (Disclaimer: probably. Unless they change their minds.)
  • RAND found that, on average, production of each impact case study cost the submitting University £7,500 and took 30 days. The average cost for production of the impact template was £4,500. Some took the view that this is reasonable given the amount of money being distributed by way of the REF. Others did not.
  • 84% of case studies were rated 3* or 4*. It seems that evaluation panels found the 0* – 4* scale a bit too limited to differentiate properly between different case studies, and it may be that a wider scale (0* – 10*? No one mentioned specifics) is employed next time.
  • Case studies were assessed by the REF panel members together with non-academic users. There wasn’t much support for changing this mechanism next time around. Most of the speakers seemed fairly suspicious of the idea of trying to formulate some kind of metric for impact assessment – neither Panel B nor C had used journal rankings as part of the impact evaluation process, and the KCL research suggests that the range of impacts is so diverse than developing any meaningful metric would be impossible.
  • According to Simon Steven (thanks @_loveresearch!) Hill, the ratio of case studies:FTE staff submitted is unlikely to change (unless the staff selection process as a whole changes, which I gather is likely to be a question in a forthcoming post-REF2014 consultation – staff selection processes cost Universities a lot of money, plus, as some of us may have noticed, they are not great for staff morale.)
  • It is likely that case studies submitted last time will be eligible for resubmission provided that they have had further/ongoing impact since 2014. The general understanding seems to be that impacts can take a long time to develop – longer than one REF cycle in many cases – and that should be reflected in the assessment process.

Some difficult questions and things to think about:

  • There was quite a lot of discussion about whether or when public engagement counts as impact. Some pointers: (a) engagement needs to be about research, not just basic knowledge of the subject matter – giving a talk that could come from a textbook is unlikely to count; (b) it doesn’t need to be your own research, so long as it is research being conducted by someone in your department/school/whatever – the example given here was Brian Cox, who is actually a particle physicist but covers a lot of the astronomy work conducted by others in his department in his media work; (c) numbers of people at your talk/downloading your podcast/visiting your webpage etc is not evidence of impact in itself – you need to capture how it affected their views, by eg having exhibition visitors fill in evaluation forms or recording what was tweeted about your programme.
  • How are you supposed to compare an economic impact with a policy impact with a cultural impact? It seems the panels calibrated by comparing like with like, not comparing across categories, since it’s apples and oranges. (Yes, I know about that paper comparing apples with oranges.)
  • How do you measure negative impacts – research which resulted in something not happening? The KCL research suggests Universities just didn’t attempt this in their case studies, but I think that’s a problem for something like law – excellent legal research might well produce the conclusion that legislation should not be introduced, for example.
  • Luke Georghiou from the University of Manchester pointed out that, for all the political talk about the need of academics to engage with users, there is little mention of the need of users to actually listen to anything we’re saying. So it’s probably worth thinking about ways that we, institutionally or individually, can contribute to a bit of cultural change there.

There conference twitter hashtag #refmanc15 had a few busy users for anyone who wants more detail. Now all I need to do is evaluate the impact of my post about the impact of impact.

Scottish Government Consultation on the Law of Succession – Part 2

Earlier this week, I blogged about the proposals on intestacy and protection from disinheritance in the Scottish Government’s Consultation on the Law of Succession. The third major area covered in the consultation is succession rights of cohabitants.

Ten years ago, cohabitants in Scotland had no rights in respect of the estate of their deceased partner (subject to a couple of caveats that we don’t need to be concerned with here.) The Family Law (Scotland) Act 2006, s 29 enables a cohabitant (defined in s 25) to apply to court for a share of an intestate deceased’s estate. The section lists some factors the court should take into account when considering whether to make an award, and specifies that the total amount cannot exceed what a spouse would have received in the same circumstances. What the section does not do is clarify the purpose the court should be trying to achieve when making its decision. Should it be aiming to protecting financially vulnerable bereaved cohabitants? Or making sure contributions to the relationship by the cohabitant are repaid? Should the court be trying to do what the deceased would have wanted? It’s not clear. Sheriff Janys Scott QC pointed out the difficulty here in Windram, applicant, a case where the deceased left behind both a long-term cohabitant and a couple of kids. The greater the award to the cohabitant, the less the children would receive, so while it’s fine to say any award should be “fair”, the question is “fair to whom”?

The Commission propose repealing s 29 and replacing it with an entirely new two-stage process. At stage one, the court will determine whether the claimant was cohabiting with the deceased based on a list of indicative criteria – whether they shared a home, the stability of the relationship, the existence or not of a sexual relationship, whether they raised children together and whether they appeared to others to be a couple. If the claimant passes this test, the court will then determine the share of the estate they should receive as a percentage of what a surviving spouse would have received in the same circumstances. The “appropriate percentage” will be assessed based on three factors – the length of the cohabitation, the nature of the couple’s interdependence during that time and the contribution made by the surviving cohabitant to their life together. Where a couple have cohabited for 25 years, run a business together and raised two children (as in the Windram case), the cohabitant would receive 100% of what a spouse would have received in the same circumstances. In a shorter relationship, where perhaps the couple kept their finances largely separate and did not parent together, the percentage would likely be much less. Some examples are given in the consultation paper, and more in the original Commission report (pages 71-73).

The Commission also suggested that this right should be available whether the deceased left a will or not, which is a significant change from the current position.

I am generally positive about the Commission’s recommendations here, so much so that I have encouraged New Zealand to adopt a similar approach. (They don’t seem to have taken me up on that so far, oddly.) There is certainly space to argue about the particular factors to be taken into account at both stages of the proposed system, but the “appropriate percentage” idea would introduce much greater clarity into the law whilst still allowing for some exercise of discretion, inevitably necessary when dealing with the huge variety of relationships that fall under the banner of “cohabitation”. It is worth bearing in mind that in most situations of this type, the impartial judgment of the court will not be employed. Claims will actually be resolved “in the shadow of the law” by parties or lawyers negotiating a settlement. More defined parameters as to what a cohabitant can expect to receive are especially welcome from that perspective. I am also lucky enough to be supervising a research student, Ellyn Fyvie, who is writing her Masters thesis on succession rights of cohabitants at the moment – her work will be a great help in figuring out my own views on this, although I will be encouraging her to submit a consultation response of her own.