22nd September 2022

The effects not having an appropriate Will can have on your adult children

The court system over the years has had many cases and the latest is those is Miles -v- Shearer from 2021; a case by adult children. Cases by adult children are said to be difficult, although not impossible with the appropriate evidence, particularly where such adult children are able-bodied and capable of providing for themselves through employment or self-employment. In the case of Miles -v- Shearer, where the case was largely refused, the claimants were early middle-aged and the deceased had been married to their mother for 34 years prior to that marriage being dissolved.

The Deceased’s Will makes no provision for either of the claimants, the principal beneficiary being the Deceased second and last spouse. The net value of the estate was just more than £2 million.

Prior to the date of the breakdown of their parent’s marriage the claimants had enjoyed a privileged childhood and lifestyle. Subsequently, it could be said, that the lives of the claimants had not gone according to their previous expectations.

The claimants sought to portray the causation of the breakdown of their relationship with their father due to the influence of his second wife.  That was rejected by the Court.

Evidence was preferred by the Court however, that the claimants found it amusing to refer to their deceased father as ‘The cheque-book’ and that he found this reference to himself to be hurtful.

He had made a significant lifetime gift for them but that was some considerable time period before the date of his death. From the date of the gifts through to the date of his death he had clearly advised his daughters (with whom he had a fitful relationship) that they would receive no further financial assistance from him whether during his lifetime nor on his death by his Will.

One of the claimants, in addition to her own claim, sought to argue that she was solely responsible for the extensive and complex needs of her youngest child who was and is autistic and therefore in her case she was unlikely to be able to lead an independent life.

Her mother argued that she required funds from her father’s estate to meet those support costs. The court found that the grandchild did not qualify as an extra eligible person under the Act and the obligation to consider the disability of an applicant did not extend to the disability of a dependent of a person who was themselves a potential applicant.

Interestingly, however, the court did have significant sympathy and did take into account the effect of the grandchild’s autism on her mother’s earning capacity so it could be said that there was a degree of indirect extension of the existing canon of case law by the Court.

It was interesting that the deceased’s former wife had provided a degree of financial assistance to her daughters after the divorce and that there was a general intention on her part to continue assisting.

The Court found that neither of the claimants had demonstrated a need for maintenance which could not be met, if necessary, by an adjustment to their lifestyles from that which they had anticipated during their childhood and early adulthood, to the reality in their early middle may age from their own earning abilities.

So, on balance this is a case which shows that adult children who are seen as capable of earning will have a tough time convincing a court that financial provision should be carved out for them which runs contrary to the wishes as set out by the deceased’s Will.

What this does, however, show is that if you have a difficult or estranged relationship with a child of your own or indeed a stepchild who has previously been treated by you as if they were a child of your marriage with one of their biological parents, then great care has to be had when it comes to making a Will, as making a Will in such circumstances is fraught with danger.

Whilst there are never any guarantees in this area, an open and frank discussion with whomsoever is drafting your Will as to your circumstances is generally to be encouraged because otherwise, the draughtsman cannot know of the dangers they are trying to draft against.

A word about cohabitation. Many persons who form close relationships in later life with another may well come to the conclusion that getting married et cetera is a bad idea.

Often this will be said to be because the children of a person considering marriage would not like it that their parent is considering getting married at the age that they are. In essence, however, this may be a polite smokescreen for the concern on the part of a child that they may be financially disadvantaged on their own parent’s death, by provision made in their parent’s Will for their current spouse.

Again, this frequently held expectation can be dealt with by an appropriately drafted Will.

Whether it is a person wishing to make some form of financial provision for their spouse, whether that be in the form of meeting their likely accommodation needs or meeting their likely income requirements (insofar as those cannot be met from the person’s own finances such as pension et cetera) whilst ultimately ensuring that assets passed to their own children, such arrangements can be enshrined within a particular form of Will which frequently works well. Indeed, as some may have come to realise by now, if one chooses not to be married, not to make a Will which makes appropriate provision for a long-term cohabiting partner, then in fact the chances of such a claim being brought and been brought successfully are much, much higher.

Do you remember that such claims, especially if one is on the losing side, carry with it the risk that not only does the losing party have to pay their own legal costs, but they will also have to pay a proportion of the victor’s costs as well. So not getting married and not having the appropriate Will is absolutely no panacea and could be said to be the worst of all outcomes.

 

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

Next time how to give instructions for making a Will with disappointed beneficiaries where challenge to capacity to make a Will or to make a Will which is free of the charge of being made whilst being under undue influence is likely to be made.

Edward Walter

Edward Walter
Partner