Will claim Solicitors, specialist no win no fee will dispute and will contest Solicitors, discuss whether an adult child has to have a moral claim to win in relation to disputed and contested Wills

Why would an adult child need a moral claim to win in relation to a disputed or contested Will?

A moral claim is definitely not a requirement where an adult child of the deceased is bringing a claim against the legal validity of his/her parent’s last Will. This type of claim will simply turn on questions about the parent’s mental capacity, whether he/she was unduly influenced and/or in relation to whether the Will was executed in accordance with section 9 of the Wills Act 1837:

In this blog we are considering the alternative claim (although it can be made at the same time) for financial provision under section 2 of the Inheritance (Provision for Family and Dependants) Act 1975:

This is a claim where the legal validity of the deceased’s last Will is not necessarily being challenged; what is being argued by the adult child is that (where he/she has been disinherited) there are financial needs not met under the terms of the deceased’s last Will.

As described in our previous blogging an adult child is not usually a favoured applicant under the 1975 Inheritance Act because it is anticipated that he/she is independent and hasn’t relied on the deceased (financially) for many years. See for example:

So why might a moral claim be required?

A moral claim isn’t required per se; what the courts have said is that where in a Will dispute or Will contest claim for financial provision and the Claimant is an adult child, then something more must be proven by the adult child and that something might for example be a “moral claim”. There is a very good summary of this in Nahajec v Fowle (2017) EW Misc 11 (CC) by HHJ Saffman (paras 22 and 23) ( ):

It is clear however, and was made abundantly so by Lord Hughes in Ilott at paragraph 20, that there is no requirement for a moral claim as a sine qua for all applications under the Act. As the learned Supreme Court Justice stated, what Oliver J meant by his reference to “moral claim” was simply that;

“In the case of a claimant adult son well capable of living independently, something more than the qualifying relationship is needed to found a claim……….. Clearly, the presence or absence of a moral claim will often be at the centre of the decision under the 1975 Act”

This, in my view, follows the line of reasoning set out in Re Hancock (1998) 2 FLR 346 where the Court of Appeal emphasised that there was no additional threshold that had to be negotiated by an adult child claimant to show that he/she had a moral claim although “it may be difficult for a child who is able to earn their own living to show that reasonable financial provision has not been made for them without some special circumstances such as a moral obligation”

So what is a moral claim?

A senior partner in a well-respected and well known firm of Solicitors acting for charities recently described it to me as follows:

An example of circumstances giving rise to a moral obligation on a parent to provide for a child is that of a child acting to his/her detriment in caring for the parent in their later life (eg giving up a job to do so, moving home to do so etc), or of a child supporting his/her parent financially.

Does an adult child have to prove that he/she has given something (care or financial support) to prove a “moral claim”?

The answer is no. In any event if a child was flush enough to provide financial support to his/her parents, then he/she is unlikely to have any financial needs anyway.

This has always been a difficult concept to fathom. I have googled the definition for example only the discover the following:

A moral claim evaluates the rightness or wrongness of an action or a person’s character. For example, “Lying is wrong” claims the act of lying is wrong, while “One shouldn’t be lazy” claims a character trait (i.e., laziness) is wrong.

I am no further forward!!

However, what is interesting is the evaluation of HHJ Saffman in Nahajec above. He described that the question of whether there was a “moral claim” fell to be considered as part of section 3(1)(g) of the Act (at paragraph 28):

Issues relating to what may in shorthand be described as a “moral claim” may come into play as a result of the application of section 3 (1) (g) above — as indeed may the issue of the reasonableness or otherwise of the deceased’s decisions[1] (although, as I hope I have made clear, the fundamental question that the court must ask itself is not whether the deceased’s decision was unreasonable but whether the disposition arising as a result of those decisions has produced an unreasonable result.

Then, when it came to consider this question from paragraph 56 of his Judgment onwards, he deals solely with “conduct” issues; in other words whether the Claimant was being truthful, that she had tried to maintain contact with the deceased (so the rift with her father was more likely to be his fault than hers) and if the basis for him disinheriting her (“that she was sufficiently independent of means not to require any provision from me”) had any merit, which it did not. This seems to have been sufficient for him to make a finding in her favour.

Having a “moral claim” then seems to be based on conduct and impecuniosity:

  1. A truthful applicant;
  2. No fault in relation to lack of contact or estrangement;
  3. A flawed basis for her disinheritance;
  4. Impecuniosity (which wasn’t caused by the applicant).

In the more recent decision of H (deceased), Re (2020) EWHC 1134 (Fam)

the main basis for Mr Justice Cohen finding broadly in the adult child Claimant’s favour seems again to have been that she was generally truthful, but perhaps more importantly that she was impecunious through no fault of her own (paragraphs 44 to 45):

Thus the first question before me is whether, in the circumstances, C’s financial position, difficult as it is, caused by reason of her suffering from a severe and debilitating mental illness which makes her unable to support herself and her two primary school age children, and which makes her dependent on state benefits and precarious financial support from her partner, means that the will did not make reasonable financial provision for C.

45. The more that I have contemplated this matter, the harder I have found it. There is no doubt that C is in a position of real need. But, on the other hand, C had cut herself off from her family some 10 – 20 years ago and has had no financial support from them for over 20 years save for the period 2007 – 2011. For these purposes I ignore the minor gifts that they provided her with on birthdays and other festivals.
As the courts seem to make clear then, the greater the financial need the less the requirement for something more than simply the qualifying relationship (moral claim). To quote again from Mr Justice Cohen, this time at paragraph 43:

“20. Oliver J’s reference to moral claim must be understood … There is no requirement for a moral claim as a sine qua non for all applications under the 1975 Act, and Oliver J did not impose one. He meant no more, but no less, than that in the case of a claimant adult son well capable of living independently, something more than the qualifying relationship is needed to found a claim, and that in the case before him the additional something could only be a moral claim”. (Emphasis added).

If you consider any of these facts and matters are of interest, 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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