CONTESTING A WILL WITH WILLCLAIM.COM – WHAT IS SO SPECIAL ABOUT ADULT CHILDREN?
Will claim Solicitors, specialist no win no fee will dispute and will contest Solicitors, discuss claims by adult children under the Inheritance (Provision for Family and Dependants) Act 1975
Overview of Will disputes by adult children (of the deceased)
In England and Wales a mother or father can disinherit their children because they can legally make a Will with no provision for them. Whilst this might seem wrong to most people it is unfortunately the law in England and Wales. Clearly this could easily lead to situations where young children could be left destitute. Parliament stepped in to allow the courts to make financial provision orders under a series of “family provision” statutes the latest of which is the Inheritance (Provision for Family and Dependants) Act 1975
Why are adult children special?
The problem is they are not! Adult children who in general are unlikely to have been dependent on their deceased parents for many years are not favoured applicants under the ’75 Inheritance Act. We discussed this under a previous blog providing some examples of when a will contest or will dispute claim by an adult children might succeed
So why do we mention “special” in relation to adult children?
This issue for courts when an adult child brings an inheritance or will contest will dispute claim is that they clearly do fall within the class of potential Claimants. So the courts must consider their claims even if they ultimately reject them. Furthermore, when one considers in more detail the factors which the courts must bring into play when deciding whether or not to make an award under the Act which appear under section 3, it becomes even clearer that many ordinary adults could recover something simply because many of us (adult children) have health issues and pecuniary needs. See for example the list of factors under section 3:
(a)the financial resources and financial needs which the applicant has or is likely to have in the foreseeable future;
(b)the financial resources and financial needs which any other applicant for an order under section 2 of this Act has or is likely to have in the foreseeable future;
(c)the financial resources and financial needs which any beneficiary of the estate of the deceased has or is likely to have in the foreseeable future;
(d)any obligations and responsibilities which the deceased had towards any applicant for an order under the said section 2 or towards any beneficiary of the estate of the deceased;
(e)the size and nature of the net estate of the deceased;
(f)any physical or mental disability of any applicant for an order under the said section 2 or any beneficiary of the estate of the deceased;
(g)any other matter, including the conduct of the applicant or any other person, which in the circumstances of the case the court may consider relevant.
“Special Circumstances” or a “Moral Claim”
To explain when it might be appropriate then to make an award to an adult child in inheritance claims, will dispute and will contest claims, the courts have to an extent been engaged in verbal gymnastics. It has been found variously that the adult child must have “special circumstances” and/or a “moral claim” for the discretion to be exercised in their favour and an award made. The courts have then drawn back from this because there is no such requirement within the Inheritance (Provision for Family and Dependants) Act 1975. For instance, the Court of Appeal in Hancocks Re (1998) EWCA Civ 764:
Per Lady Justice Butler-Sloss:
15. Mr Crawford invited our attention to the passage in the judgment of Goff LJ in re Coventry at page 488:-
“Indeed, I think any view expressed by a deceased person that he wishes a particular person to benefit will generally be of little significance, because the question is not subjective but objective. An express reason for rejecting the applicant is a different matter and may be very relevant to the problem.”
That principle of course governs the approach of the court to the assessment required to be made by the Court of the reasonableness of the provision or lack of provision. A good reason to exclude a member of the family has to be a relevant consideration. However, in my view, the recognition by the testator of the status of members of his family and his goodwill towards them and in this case towards the plaintiff are factors which it is proper to take into account under section 3 (1)(g) and it is for the court to give such weight to those factors as may in the individual case be appropriate. In my view, despite Mr Crawford`s argument to the contrary, the judge was entitled to take clause (6) of the will into account in making his value judgment as to the reasonableness of the provision after the increase of the value of the estate.
16. The judge did take into account the conduct of the plaintiff and found that she had given a deliberately misleading account of her circumstances with Mr Pearce, and also of her contribution to the family. He was critical of her evidence. The extent to which such conduct is to be taken into account is pre-eminently a matter for the trial judge and Judge Rich did not attach much importance to it.
17. In my judgment, on the facts of this case, which the judge said were certainly unusual and markedly different from the facts in re Coventry, the judge was not obliged to find a special circumstance, such
as a moral obligation. He was entitled to look at all the relevant matters as enjoined under section 3 and, subject to the second argument of Mr Crawford, to make the decision that he did.
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.
We provide details about our no win no fee arrangements at https://www.willclaim.com/no-win-no-fee/.