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CONTESTING A WILL – WHAT IS REASONABLE FINANCIAL PROVISION

Will claim Solicitors, specialist no win no fee will dispute and will contest Solicitors, consider the real meaning of reasonable financial provision in Will dispute and Will contest
claims.

What is the significance of “reasonable financial provision” in Will dispute and Will contest claims

This relates to a claim by a potential beneficiary to a deceased’s estate (usually a spouse or child or dependant of the deceased) who hasn’t been left anything by his/her Will (or perhaps where there is no Will, but virtue of the rules of intestacy)).

This person is usually able to bring a claim for so-called “financial provision” under section 2 of the Inheritance (Provision for Family and Dependants) Act 1975 see http://www.legislation.gov.uk/ukpga/1975/63.

This basis of a claim for financial provision is:

that person may apply to the court for an order under section 2 of this Act on the ground that the disposition of the deceased’s estate effected by his will or the law relating to intestacy, or the combination of his will and that law, is not such as to make reasonable financial provision for the applicant.

We discuss claims of this nature in our page at “No or Insufficient Inheritance” (see https://www.willclaim.com/claim-types/inheritance/ ). We have also considered it in previous blogs, see for example https://www.willclaim.com/blog/.

So what is “reasonable financial provision”

Frankly it is confusing. However, it seems to us that the essence of the decisions on this is that what is reasonable is considered by reference to the circumstances at the time of the claim and that the reasonableness of the deceased’s decisions in relation to his or her estate at the time the Will was made, is not necessarily relevant. Re Jennings (1993) EWCA Civ 10
(see https://www.casemine.com/judgement/uk/5a8ff87a60d03e7f57ec1182 ) is a case on point. Lord Hughes in the lead Judgment in Ilott v The Blue Cross and others (2017) UKSC 17 at paragraph 17 opines (approving Re Jennings):

In In re Jennings, for example, the deceased had unreasonably failed, throughout the minority of his son, the claimant, to discharge his maintenance obligations towards him. Many might say, as indeed the trial judge Page 16 did, that this failure imposed an obligation on the deceased belatedly to provide for his son. But by the time of his death many years later the son had made his own
successful way in the world and stood in no need of maintenance; his claim accordingly failed, correctly, in the Court of Appeal.

So in Re Jennings because the Claimant didn’t need maintenance at the time his claim was made, it proved unsustainable, even though it was conceded by Lord Hughes that at the time
the Will was made the deceased “may have acted unreasonably, indeed spitefully, towards a claimant, but it may not follow that his dispositions fail to make reasonable financial provision for that Claimant..”.

Conversely, he also notes that at the time the Will was made the deceased may have acted reasonably, but that on his death, the result was manifestly unreasonable:

In re Hancock, deceased [1998] 2 FLR 346 illustrates another possibility. The deceased had acted entirely reasonably in leaving his business land to those of his children who were active in the business, but after his death part of the land acquired a development value six times its probate assessment, and, that being the case, there was a failure to make reasonable provision for another daughter who was in straitened circumstances. Thus there can be a failure to make reasonable financial provision when the deceased’s conduct cannot be said to be unreasonable.

A dramatic and unforeseen change in circumstances

Thus it seems that a dramatic and unforeseen change in circumstances can lead to an “unreasonable” result even though at the time the Will was made, the deceased’s decisions were reasonable. Later on in Ilott, Lady Hale, who gave the secondary Judgment provides some support for this:

The Commission considered limiting adult claims to children who were actually dependent on the deceased when he died, but rejected that because: “this would rule out a claim against the estate of a parent who had unreasonably refused to support an adult child during his life time where it would have been morally appropriate to provide such support. Moreover an adult child, who is fully self supporting at the time of the parent’s death, may quite suddenly thereafter cease to be so.” Hence their final recommendation was to remove all age limits “leaving the court to distinguish between the deserving and the undeserving” (para 76). But the Commission gave no further guidance as to who should be thought deserving and who should not. 60.

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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