Inheritance (Provision for Family Dependants) Act 1975

This Act provides provision for certain types of people to make a claim against an estate where they have been left out of a will . In order to be successful the Claimant must be able to show that objectively, the deceased failed to make a reasonable financial provision for them, taking into account all the circumstances of the case.

Depending on the category of person, “reasonable financial provision” can mean different things. The two categories are:

1. Spouse/Civil Partner – here the provision required is based purely on what is reasonable for the Claimant to receive in the circumstances, whether or not they need it for their maintenance.
2. All other applicants – here the provision required must be that which is reasonable for the Claimant to receive for his maintenance. This is obviously a lower standard. Maintenance itself is not defined by the act, but the Courts have construed it to be that which would be reasonable for the Claimant to live on, neither at a luxurious nor poverty stricken level.

Amongst the people entitled to claim under this act is any child of the deceased. This is a general category, whereby no age limit is imposed, so even an adult child of the deceased can claim, providing it can be shown that the deceased failed to provide reasonable financial provision.

Recent case law

In 1980 the case of Re Coventry appeared to limit the ability of adult children making claims against the deceased’s estate. In that case Oliver J stated that it is not enough to simply state that the Claimant is the child of the deceased in needy circumstances and the deceased did not provide for him in his will where there is money in the estate, rather it is necessary to establish some sort of “moral claim” to be maintained by the deceased, a claim beyond the mere fact of a blood relationship, some reason why it can be said that in the circumstances it is unreasonable that no greater financial provision was provided.

Since that time many have argued that the judge had placed a condition on the claim of an adult child, that they must show a ‘moral obligation’ in order for their claim to succeed. This may very well have limited the number of claims made by any adult children in similar circumstances, since they may have believed that their case would not stand up to such a precondition.

However, recently in the case of Illot –v- Mitson & Others [2011] the Court of Appeal reviewed the case law in this matter and have provided a new helpful guide on how to approach cases involving the claims of adult children.

This case really emphasised the Judges’ decisions in Re Hancock [1998], applied in H –v- Mitson [2009] and Espinosa –v- Bourke [1999], which stated that all the factors stated in the Act which the Court needed to consider when deciding whether there was reasonable financial provision have equal weight. No one factor could be used to undermine all the others.

With this in mind the Court in Illot –v- Mitson reaffirmed that which Butler-Sloss LJ said that the 1975 Act does not require an adult child to show in every case a moral or special circumstance to prove that reasonable financial provision was not provided. Rather Re Coventry merely shows that where the facts show the adult child is in employment with an earning capacity for the foreseeable future, it is unlikely they will succeed without some special circumstance, such as a moral obligation. Therefore in an appropriate case the Court is entitled to conclude that the claim should succeed, even if there is an absence of a moral or special circumstance.

The outcome of this decision is that when weighing up the factors to be considered under the Act, though weight may be placed on one side of the argument due to the lack of a moral or special obligation, this does not automatically rule out a claim and if it can be shown that the other side of the argument outweighs the lack of moral or special obligation, then the claim against the estate can succeed.

Probate law implications

It would appear that this case has reinforced the position of an adult child, showing clearly that they are in the same position as any other Claimant who has to prove their case under this Act and that Parliament clearly intended that an adult child should be able to bring a claim, even if he or she could maintain himself/herselfwithout claiming from the estate.

This may well lead to adult children in the future being more confident in making Claims against a deceased’s estate where other factors play an important role.

We can provide a substantive service for clients in this area, including:

• Advice on making a claim against an estate.
• Mediation between the parties to prevent litigation.
• Litigation, should the matter proceed that far.
• Where appropriate, advice on drafting a will to prevent such problems arising from the outset.

This note has been supplied courtesy of S Portnoy of Darlingtons Solicitors, well known solicitors in London. For advice on any aspect of wills, probate or estate administration, please contact Darlingtons on 0208 951 6666.