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Stephen Baker
Stephen Baker,
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Free Will and Testament
12 July 2011

Inheritance (Provision for Family and Dependants) Act 1975

It is said that an Englishman is at liberty on his death to dispose of his property in whatever way he pleases. However, this is subject to the Inheritance (Provision for Family and Dependants) Act 1975 which allows for relatives and dependants to challenge a will if no (or inadequate) provision has been made for them under the will. To determine whether the division of the deceased’s estate included reasonable financial provision for relatives, the court considers the following factors:

(a) the financial resources (and financial needs) the applicant has or is likely to have in the foreseeable future;

(b) the financial resources (and financial needs) any other applicant for provision under the Act has or is likely to have in the foreseeable future;

(c) the financial resources (and financial needs) any beneficiary of the estate of the deceased has or is likely to have in the foreseeable future;

(d) any obligations and responsibilities which the deceased had towards any applicant under the Act or towards any beneficiary of the estate of the deceased;

(e) the size and nature of the net estate of the deceased;

(f) any physical or mental disability of any applicant for an order under the Act or of any beneficiary of the estate of the deceased;

(g) any other matter, including the conduct of the applicant or any other person, which in the circumstances of the case the court may consider relevant.

Following the above criteria, it was previously thought that an adult child (of the deceased) capable of earning a living (who did not receive any maintenance from the deceased in their will) would not be able to challenge the will of the deceased. However, a recent judgment in the case of Ilott v Mitson challenges this proposition.

Case Facts

In the case of Ilott v Mitson, which reached the Court of Appeal, the 50 year old adult child of the deceased made an application under the 1975 Act to contest her mother’s will. The Appellant’s mother died at the age of 70 leaving behind an estate worth £486,000. In her will she requested that the whole of her residuary estate be left to three charities, namely the Blue Cross Animal Welfare Society, the Royal Society for the Protection of Birds and the Royal Society for the Prevention of Cruelty to Animals. The deceased had sensibly even left a letter for the executors providing a detailed explanation of the reasons for excluding her only child from her will.

The daughter had left home at the age of 17 against her mother’s will to set up home with her present-day husband with whom she had gone on to have five children. The relationship between mother and daughter remained fraught until her mother’s death despite a few unsuccessful attempts by the parties to repair the bond. The daughter had a very modest standard of living and survived on benefits and the occasional income from her husband’s part time earnings. During her lifetime the deceased had repeatedly informed her daughter that no provision would be made for her in any will.  However this did not stop her daughter from successfully contesting the lack of provision for her.

Decisions

The district judge at first instance held that the disposition of the will had not made reasonable financial provision for the daughter and awarded her the sum of £50,000. The daughter challenged the amount awarded in the High Court and, at the same time, the charities cross-appealed arguing that the claim should be dismissed. The daughter’s appeal was dismissed by the High Court judge so the daughter subsequently appealed to the Court of Appeal against this order.

The Court of Appeal found that the first judge had appropriately considered the factors set out in the Act and had done a proper balancing exercise. The High Court judge had been wrong to allow the charities’ appeal. Leave was therefore given for the daughter to challenge the amount of the award and the case was remitted to the High Court for an appeal on that aspect to be heard. It should be noted that the Court of Appeal strongly urged the parties to negotiate in respect of the award rather than litigate further.

Effects

This case demonstrates that even where someone expressly excludes a relative or dependent from their will, legal challenges can still be made by those relatives or dependents, even notably an adult child who has managed to survive without any assistance or support from their parent during his/her adult life. The courts are in the powerful position of dictating what they think is just, in spite of the views of the deceased.

The decision in this recent case represents a departure from the previous stance generally thought to subsist that where an adult beneficiary was not being maintained the chances of successfully gaining provision under the 1975 Act were practically non-existent.

Do you have an enquiry or potential claim involving disputing a will? Contact Boyes Turner Probate Disputes team by calling +44(0)118 959 7711 who will be able to advise you. 

Consistent with our policy when giving comment and advice on a non-specific basis, we cannot assume legal responsibility for the accuracy of any particular statement. In the case of specific problems we recommend that professional advice be sought.

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