Tuesday, 21 March 2017

Will Challenge by Adult Children

If you chose to pack up on planet earth without making a will or make a will leaving out someone who might have expected  a bonanza, that's your privilege - you may think. In fact, if that someone is aggrieved by your omission they might be able make a claim against your estate. The milkman or postman? Only a specified class of persons : principally, spouses and partners; former spouses and partners (unless a court order on break up has excluded the right to do so); those who were being maintained by the deceased when they died. And a child which includes a toddler as well as a great big old and ugly child?

The Supreme Court has just given its eagerly awaited judgments * on how claims by adult children should be decided by the court and on principles which should be applied to all claims. In the case in question, a mother had left her daughter out of her will. Her estate was worth around £486,000. Apart from a modest gift to a benevolent society connected with her late husband's employment, she had left the lot to a group of charities in which she had shown little or no 
interest while she was alive. She had fallen out with the daughter. They had been estranged for 26 years and three attempts at reconciliation had foundered.

After court hearings including appeals which have been going on for around 11 years (!!!), the Supreme Court decided that the daughter should be awarded £50,000 out of the mother's estate which is what a district judge at the very beginning had decreed. For her part, the daughter had been after one-half of the estate and the charities (anxious that no precedent should be set which would lose them a fortune in bequests in other cases), argued that the daughter should have nothing.  

This is what the Supreme Court said -
  • In a claim against a estate - it would be make under the Inheritance (Provision for Family and Dependants) Act 1975 - the court will usually have to consider whether the will or, if no will, the intestacy laws, make reasonable provision for the  claimant (what it was reasonable for the claimant to receive) and, if not, what reasonable provision ought to be made for them now.
  • In deciding whether reasonable provision has been made the court is NOT deciding whether the deceased acted unreasonably. The court might say that there were very good reasons for the deceased' wishes at the time but what the claimant ends up with, if anything, is not reasonable. That might be, for example, where the claimant's circumstances have altered and the deceased did not know about them or did not have time to change their will. Conversely, the deceased may have acted out of spite but nevertheless made reasonable provision for the claimant.
  • The state of the relationship between the deceased and the claimant will still kick in. In considering both matters mentioned above, questions arising from that relationship will be applicable as will be questions relating to the needs of the claimant and issues concerning competing claims of others.
  • The date for assessing whether reasonable provision has been made and, if not, what it should be is the date of the hearing of the claim and not the date the will was made or the date of death. So the court is looking at circumstances as they are when a decision is being made.
  • A claimant other than a spouse or civil partner can only claim what is needed for their maintenance. This is not limited to subsistence level. The maintenance needed not be by way of regular income payments. It will very often be more appropriate if the claimant gets a lump sum from which both income and capital can be drawn over the years. Or the claimant might be awarded a lump sum to buy a car to get to work. There is also no reason why housing should not be provided which could be by way of a right for the claimant to live in a particular property for the rest of their lifetime. 
If leaving out from a will a child or someone else who might make  a claim, you can set out your reasons in a document to go with the will. The mother in the case before the Supreme Court did just that and what she said was taken into account. For much more on this and additional information about who can make a claim, how, the relevant time limit and the intestacy laws, see Breaking Law at chapter 32.

* The case is Ilott v The Blue Cross and others [2017] UKSC 17