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Claiming for Reasonable Financial Provision Under a Will

Tuesday, 21 June 2011

Melita Jackson, died in 2004 aged 70, leaving the bulk of her estate to The Blue Cross, the RSPB and the RSPCA, charities that she had shown no interest in during her life and that she gave no reasons for choosing. In a letter attached to her will, the deceased did however explain to her executors why she had left nothing to her only daughter, and her grandchildren.

The Court of Appeal has ruled that the estranged daughter can make a claim against the estate under the Inheritance (Provision for Family and Dependants) Act 1975.

The deceased's daughter lives in a small community without easy access to the nearest town, with her husband and five children. They share rented accommodation and live on a limited income of state benefits and her husband's irregular wages. He is unable to take regular work due to back problems.

Challenging an earlier award, the Court of Appeal allowed her appeal and directed that the appeal on quantum should be heard by a different High Court judge. Wall LJ said that the first stage in deciding such cases was a "value judgment" to be taken at the first instance tribunal, whether or not the deceased's dispositions made reasonable financial provision for the daughter under the Act. Arden LJ noted that the application of 'reasonable financial provision' should take account of all the circumstances, current social conditions and values. However, case law made it clear that there was no requirement for the deceased to owe the daughter a "moral obligation".

Arden LJ further said that the fact that the daughter had chosen to marry a man of limited means, against her mother's wishes, did not make "the complete absence of provision" by the deceased reasonable.

This was not a case where judges were simply being asked to re-distribute estates because they thought that the deceased made the wrong choice. Rather, that the deceased had failed to make provision that ought to have been made. In other cases, a testator may be held justified in not providing for a child who is in need of financial provision if the child could make greater efforts or there is someone else who would benefit from the estate whose need is equal to or greater than that of the child for example.

The removal of the restrictions that only a child under the age of 21 could claim under the Act, makes it clear that parliament intended that an adult child should be able to bring a claim even if it was possible for them to subsist without making a claim on the estate.

Acting for the charities in this case, James Aspden said that the Court of Appeal's ruling lacked "practical guidance and clarity" and added that the charities were consulting on whether to appeal to the Supreme Court.

If you require advice and assistance in making or defending a claim under the Inheritance (Provision for Family and Dependants) Act, then please contact the Head of Private Client at Rollingsons solicitors on 020 7611 4848.