You may have recently seen a lot of press coverage of a case involving animal charities defending a challenge to a mother’s will by her adult daughter. This was an appeal to the Supreme Court, the highest authority in the legal system.
Ultimately in our view this case largely restates the law. It does not, contrary to press reports, prevent a statutory claim for an award by an adult child who has been left out of a will. In fact the Supreme Court reinstated the original £50,000 award (but overturned a higher award of £163,00 awarded by the Court of Appeal). For those who are not practitioners or specialists in this legal area it may help to set out what this decision is actually about, and how it impacts clients who may have a legal issue of this nature.
A mother had excluded her estranged daughter, who was of very straitened means, from her Will and left the whole c.£500,000 estate to three animal charities (who the mother had no affiliation with). There was an initial award to the daughter by a Court of £50,000 followed by a very complex history of appeals before arriving at the Supreme Court. The Supreme Court decision has been reported as meaning that it is more difficult (or even impossible) for children to now challenge a parent’s will, and some have hailed it as a victory for testamentary freedom. A short guide to this complex area of law is below:
- In the UK, unlike much of mainland Europe, people have testamentary freedom – i.e. the law does not force them to leave a certain level of their estate to family members. That is unchanged.
- Since the 1930s (and in particular since the 1970s) certain categories of people- including adult children- (but also spouses and civil partners, ex-spouses and ex-civil partners, cohabitees and some other dependant persons) have had the right to make a claim for financial provision if a Will does not provide for them. This is governed by the Inheritance (Provision for Family and Dependants) Act 1975 – commonly known as the Inheritance Act.
- Claims under the Inheritance Act are completely separate to someone challenging the “validity” of a will (e.g. if claims where it is argued that the testator had lost testamentary capacity, or had been unduly influenced to make a will. That is entirely unaltered by this case as there was no challenge to validity here.
- If a person is in a category qualifying them to make a claim, the Court will consider whether “reasonable financial provision” has been made for them by a will (or intestacy) and may make an award for them from the estate if it is considered appropriate by reference to a statutory list of factors.
What has the recent Supreme Court judgment actually decided now? What has it changed?
- It confirmed that “Reasonable financial provision” in an adult child case will be considered by reference to what is required for the adult child’s “maintenance”, rather than capital. This restates the law. That is not to say that what is required for maintenance will not lead to a capitalised sum being awarded.
- No definition of what is required for maintenance has been provided, it will be “flexible”. Maintenance is not limited to subsistence level. It will take into account all the relevant factors.
- Relevant factors will include the reason for the will - whether there was an estrangement for example. It is also relevant as to whether the adult child claimant lives in financially straitened circumstances.
- The court did make comments whereby the interests of other beneficiaries (including where they are charities) should not be overlooked, nor should the testator’s wishes be overlooked. The charity sector consider that is very helpful for them in defending claims of this type.
- Usually, in respect of real property, a claimant will be likely to receive a life interest in a house rather than an outright gift of it. It was not stated that this was an absolute rule.
- The testator’s wishes is one factor to be borne in mind but not the only one. To some extent there will be a value judgment as to whether the adult child claimant is “deserving” of an award and what it should be.
- Those advising testators who wish to exclude adult children should be aware that challenges are still possible depending on the particular facts and circumstances. A detailed letter of wishes expressing the testator’s wishes may assist in defending claims. The judge may however apply a value judgment as to whether reasonable financial provision has been made, and what award should be made as part of the same process taking into account all the relevant facts and matters.
- It seems unlikely as a result of the Judgment that appeals against Inheritance Act awards made by first instance judges will succeed or the original value judgment made by the judge will be interfered with by an Appeal Court.
- Ultimately in our view the case provides helpful clarification/re-statement of the law. While these types of claims will not automatically succeed, it does not preclude them from being made or succeeding. The decision itself approved an award for a fully financially independent able bodied adult child (albeit of very modest means) contrary to the testator’s wishes and despite their long estrangement. It was not, however a very big award. In short, every claim by an adult child will be looked at on its own merits and particular facts (as was always the case).
A longer article on this judgment can be found here: Ilott v The Blue Cross and Others - The Supreme Court Judgment.
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