11th March 2024

Will Beneficiaries, Claimants and Disputes

This article is NOT intended as information/ a guide as to how to bring nor and 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 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 this money and assets to family members that one would ordinarily expects to see inheriting, such as children etc.

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, and that Will can benefit the persons you wish to, without having to follow a form of state-imposed structure of 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.)

1. 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’.

2. 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.

3. 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.

4. 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.

5. 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.

6. 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 is considering bringing such an action or defending such an action?

The Court, when balancing the merits of the parties’ respective claims, will consider factors such as:

  • The financial situation of the applicant,
  • The size and nature of the estate being contested,
  • The deceased’s obligations and responsibilities to the applicant, the disappointed party, and 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,
  • 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, in other words, they will have to second-guess how the court is likely to treat the particular claim.

It is particularly difficult to draft a Will leaving out provision for a current spouse. It is also fair to say that when faced with divorce, it is always helpful to try to have a clean break outcome; if nothing else as to ensure that a former spouse cannot, years afterwards, claim against one’s own estate. This is especially important if one’s financial position has significantly improved after the date of the divorce, and the divorce hasn’t come through without the benefit of a final financial settlement.

 

The category of persons who are usually most challenged by a lack of provision under a Will will either be a child of the deceased or a long-term cohabitant. 

Example

The latest case of the sort is Miles -v- Shearer from 2021, being a case by adult children. Causes 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 made no provision for either of the claimants, the principal beneficiary being the deceased’s second and last spouse. The net value of the estate was just over £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 accordingly to their previous expectations.

The claimants sought to portray that the causation of their poor relationship with their father was due to the influence of the 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 time 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 not receive any further financial assistance from him 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 is autistic, and therefore in her case, she was unlikely to be able to lead an independent life.

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

Interestingly, however, the Court did have significant sympathy and did consider 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 noteworthy that the deceased’s former wife had provided a degree of financial assistant 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 lifestyle from that which they had anticipated during their childhood and early adulthood, to the reality in their early middle-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 the court that the financial provision should be carved out for them.

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

 

Further information

Whilst there are never any guarantees in this area, an open and frank discussion with whomever is drafting your Will about your circumstances, is generally to be encouraged. 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 etc 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 the 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 the person making the Will is: provisioning for their spouse, meeting their likely accommodation needs or meeting their income requirements and ultimately ensuring their assets are passed to their own children, these can be enshrined in a particular form of Will. 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 the chances of such claim being brought are much higher.

Do remember that such claims, especially if you are on the losing side, carry the risk of paying their own legal costs and a proportion of the victor’s legal costs as well. So, not getting married and having the appropriate Will is absolutely no panacea and could be the worst outcome.

 

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

Edward Walter

Edward Walter
Partner