5th September 2022

Making a Will where you know there’s trouble ahead

This article is not intended as information/a guide as to how to bring and/or defend an action under the Inheritance Provision for Family & Dependants Act 1975 (’IPFDA’75).

What it is, however, is some thoughts on how to give instructions for the drafting of a Will by a professional, and indeed the importance of having the appropriate Will in place, for those persons who believe that the meeting of their testamentary wishes may give rise to such a claim on the part of their disappointed beneficiaries.

Whilst it is often said that it can be distressing to find that one has been left out of a loved one’s Will, one can equally say that there are many persons who quite legitimately do not wish to leave their money and assets to particular family members that one would ordinarily expect to see inheriting such as children et cetera.

A key difference between English succession law and that typically found in many European countries is that in England and Wales there is freedom of testamentary disposition i.e. that one can choose to make a Will or not make a Will and that Will can benefit the persons you wish to without having to follow some form of state imposed structure as far as who can receive what.

That having been said, freedom of testamentary disposition is not absolute in that the IFPDA’75 enables a person who can show that they should have been provided for (and have not) can secure adequate provision out of the estate.

To make a claim under the act, a would-be claimant must fall under one of the following categories:

(The term spouse should be regarded as interchangeable here with a ‘civil partner’ being a civil partner under a registered civil partnership and the use of the word spouse will cover both such classes of person.)

  • A current spouse of the deceased.

Do note that as soon as there is a decree absolute in place then a person can no longer be regarded as ‘a spouse’.

  • A former spouse who has not remarried and who has not received a final financial settlement on a clean break basis following the marital breakdown
  • A person who, during a two-year period immediately preceding the date of death was living in the same household as the deceased ‘in the manner of a spouse’.

Do note that the two-year period is a strict one i.e., if the cohabitation before death is/was a 12-month period living in the same household but the relationship predated the cohabitation period, then the time bar may stop the bringing of such a claim.

  • A child of the deceased which is widely defined to include an illegitimate child, a legitimated child and a child which has been adopted by the deceased.
  • Any person treated by the deceased as a child of the marriage. This is very much ‘fact specific’ and therefore may not be as wide as initially anticipated.
  • Any person not coming within the above classes of potential claimant who is financially maintained exclusively partially at least by the deceased immediately before the deceased’s death. There is an exclusion for maintenance paid for valuable consideration which accordingly excludes domestic staff from having a claim under the Act.

So, if a person potentially is within the class of person able to bring such a claim, what is the next step, whether one be considering bringing such an action or defending such an action?

The Court, when balancing the merits of the parties’ respective claims, will take into account factors such as the financial situation of the applicant, the size and nature of the estate being contested, The deceased‘s obligations and responsibilities both to the applicant, the disappointed party, and to those who beneficially did take under the Will, the financial situation of beneficiaries who do benefit under the Will, any physical and or mental disability either on the part of the applicant bringing the claim or any beneficiary who would be prejudice by the claim being granted, and last but not least, any other relevant consideration including the conduct of the person bringing the claim.

Anyone either bringing a claim or considering opposing such a claim will need to go through the same balancing exercise as the Court would or other words, they will have to second-guess how the court is likely to treat the particular claim.

It is probably fair to say that it is particularly difficult to draft a Will leaving insufficient provision for a current spouse. It is also probably fair to say that when faced with divorce, it is always helpful to try to have a clean break outcome. This can help to ensure that a former spouse cannot, years afterwards, claim against one’s own estate, especially if their own financial position has significantly improved after the date of the divorce, if the divorce hasn’t come through without the benefit of a final financial settlement.

However, very probably the category of persons who most challenge a lack of provision under a Will will either be a child of the deceased or a long-term cohabitant.

See the next article for a real example of the effects on adult children where there is no appropriate Will in place.

For advice relating to drafting a will where such challenges exist around you, please contact Edward Walter ewalter@bussmurton.co.uk or 01892 502 320.

Edward Walter

Edward Walter
Partner