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CONTESTING A WILL – DOES AN ADULT CHILD HAVE A BETTER CLAIM AGAINST A NEGLECTFUL PARENT?

Will claim Solicitors, specialist no win no fee will dispute and will contest Solicitors, discuss whether an adult child has a better claim against a neglectful parent under section 2 of the Inheritance (Provision for Family and Dependants) Act 1975

Claims by adult children under the Inheritance (Provision for Family and Dependants) Act 1975

Here we discuss claims for financial provision by adult children under section 2 of the Inheritance (Provision for Family and Dependants) Act 1975 – see http://www.legislation.gov.uk/ukpga/1975/63

To be clear, these are will dispute or will contest claims which do not dispute the legal validity of a parent’s last Will, but rather, seek to improve or provide the applicant with financial provision or support from a parent’s estate, because of a “failure to make reasonable financial provision”. It is an application to the court to exercise its discretion in exceptional circumstances of financial need and it is not meant to be a way of overturning the ability of the parent to leave his/her estate as they see fit.

By way of reminder we previously discussed how these claims by adult children against the estate of a deceased parent (for financial provision) are usually much harder to win because (of course) adult children are supposed to be independent and probably are not financially dependent on their parent, nor have been for many years. Here is a link to one of our earlier blogs:
https://www.willclaim.com/how-to-contest-a-will-how-hard-is-it-for-an-adult-child-to-bring-a-claim-for-financial-provision-under-the-inheritance-provision-for-family-and-dependants-act-1975/


Is the adult child’s case strengthened if the parent is neglectful or abusive?
The courts appear at first sight to be remarkably unsympathetic to “stories” of abuse or neglect in early childhood. In fact in one commentary on the subject, it is reported as follows:
“It is clear that the failure of the deceased to meet obligations which he had t o a child many years before his death will not create an obligation which will weigh in favour of an adult applicant”.

The Re Jennings (1994) Ch 286 Court of Appeal decision
This case is cited as the foundation for the assumption that a previous failure by the adult child’s parents will not be counted by the court as a factor to be taken into account when it comes to form a decision over whether the parent failed to make financial provision for his/her adult child. In Re Jennings (https://www.bailii.org/ew/cases/EWCA/Civ/1993/10.html) Lord Justice Nourse gave the lead Judgment. He makes the follow remarks which are clearly against taking previous neglect and/or abuse into account:

Thus the judge construed section 3(1)(d) so as to include legal obligations and responsibilities which the deceased had, but failed to discharge, during the child’s minority, albeit that they were long spent and would have been incapable of founding a claim against him immediately before his death. In my respectful opinion that is an impossible construction of paragraph (d). While it is true that it requires regard to be had to obligations and responsibilities which the deceased “had”, that cannot mean “had at any time in the past”. At all events as a general rule, paragraph (d) can only refer to obligations and responsibilities which the deceased had immediately before his death. An Act intended to facilitate the making of reasonable financial provision cannot have been intended to revive defunct obligations and responsibilities as a basis for making it. Nor, if they do not fall within a specific provision such as paragraph (d), can they be prayed in aid under a general
provision such as paragraph (g).

At this point some consideration of the facts of this case are relevant. In Re Jennings the adult child, notwithstanding his poor upbringing, made his own way in the world and secured for
himself and his family with a comfortable standard of living and there was no evidence that he was likely to encounter financial difficulties in the future. In short, he had no financial
needs. He had sought to “prove” his claim against his parent by relying on his parent’s neglect whilst he was an infant child. The Court, as proved to be the case, was most reluctant
to allow the ’75 Inheritance Act to be used as a mechanism of punishment in these circumstances.

The adult child whose life is adversely affected by early childhood abuse/neglect
It appears that an adult child, whose mature years have been torn apart by the physical or mental effects of early childhood abuse/neglect, might be able to bring a claim. To be clear,
this might be a minority view (see below) in consequence of the Re Jennings judgment, but it seems a live possibility. In Re Jennings, Sir John May made the following comments:

With respect to the learned Judge I cannot so construe the paragraph. In my opinion one must consider the various matters listed in Section 3(1) of the Act only in so far as they are operative at the date of the deceased’s death. For instance, if a father’s failure to fulfil an obligation to his child whilst the former is alive results in a continuing disability, perhaps physical, perhaps psychiatric, which persists to the date of the deceased’s death, then as a matter of construction such an obligation and the failure to comply with it would be matters to which the Court should have regard on an application for an order under Section 2 of the Act.

But where, as here, the father’s failure to maintain his son, pursuant to his parental obligations, occurred not later than 1961 or 1962, and had no lasting effect after that time on the plaintiff, that obligation and the failure to comply with it some 28 years prior to the father’s death in 1990 cannot, on a proper construction of the material paragraph in the Act be a matter which the Court is required by it to take into account. In my judgment the 1975 Act was passed “to make fresh provision for empowering the Court to make orders for the making… of the estate of a deceased person provision for the family or dependant of that person.” It was not passed, in my opinion, to enable a Court, perhaps many years after the event, to make retrospective reparation to a person in respect of whom a deceased had failed years earlier, to comply with a legal or familial or moral obligation, where any effect of that failure had not continued up to the deceased’s death.

It does then appear that a so-called adult child, can reasonably support a claim for financial provision against his/her parent’s estate, by reference to early childhood abuse/neglect, where there is a link between that and his/her (poor) financial state at the time of death.

If you consider any of these facts and matters are likely to apply to you, or you would like to ask us for more information about our no win no fee arrangement, or you simply want us to assess your claim, then please do not hesitate to contact us for a confidential no strings chat.

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