CONTESTING A WILL WITH WILLCLAIM SOLICITORS NO WIN NO FEE SPECIALISTS – ANOTHER ADULT CHILD INHERITANCE ACT CLAIM
Will claim Solicitors, specialist no win no fee will dispute and will contest Solicitors, explore another recent decision on an adult child financial provision claim
What is an adult child financial provision claim and what are the significant factors relating to it?
These are Will contest or Will dispute claims by adult children for financial provision from a parent’s estate. They are made under section 2 of the Inheritance (Provision for Family and Dependants) Act 1975 and usually in circumstances where no or insufficient provision has been made either under a Will or (where no Will) under the rules of intestacy. For the actual statute, please see:
This statute or “Act of Parliament” exists because of the way inheritance issues are dealt with in England and Wales. Essentially money belonging to a parent or stepparent belongs to that person to do with as he/she sees fit and there is no obligation or legal duty to leave a certain share to any near relative including children. There is no such thing as family money which has to be passed down through the generations.
Since this could create situations where (for example) infant or minor children (under the age of 18) were left destitute, Parliament stepped in with a series of Acts (culminating in the 1975 Inheritance Act referred to above) allowing children to bring a “financial provision” claim where a dispute or Will contest arose in these circumstances.
The Inheritance (Provision for Family and Dependants) Act 1975 whilst not expressly stating it, was sufficiently widely drafted to allow so-called adult children to bring a claim for financial provision (confirmed by the Law Commission report which preceded and presaged the Act)(so it was not limited to minor children under the age of 18). There followed a series of reported decisions (by the Courts) interpreting what exactly this meant – in other
words in what circumstances an adult child could bring such a claim. In an earlier blog we discuss this in some detail:
Another adult child financial provision claim decision
Higgins v Morgan 2021 EWHC 2846 (Ch) is another decision providing guidance on the factors which a court could regard as significant and which are likely to lead to a favourable award for adult children bringing this type of Will contest or Will dispute claim. The decision itself can be found at: https://www.bailii.org/ew/cases/EWHC/Ch/2021/2846.html
The following extracts provide some assistance:
Although Mr Gomer disputes that it is appropriate to regard a need to show a requirement for maintenance as a gateway requirement to a successful claim by an applicant such as Mr Higgins under the 1975 Act, I consider it reasonably clear from the authorities, and in particular from what was said by Lord Hughes in Illott at paragraph 19, that a claim by an adult child (or person treated as a child of the family) does need to demonstrate a need for
maintenance. Whether this should strictly be treated as a gateway requirement, or as part of the Court’s consideration of the application of s. 3(a) of the 1975 is perhaps moot. However, given the requirement to demonstrate a need for maintenance at some stage, I consider it appropriate on the present facts to consider this issue on a preliminary basis prior to a wider consideration of the application of s. 3.
This appears to demonstrate that a genuine financial need is an essential element
I accept the general thrust of Mr Higgins’ evidence that, prior to his death, the Deceased assisted him, as Mr Higgins put it when re-examined, by “helping his child get through a month that he knew he could not”, and that Mr Higgins, in the context of his marriage to Claire, struggled with finances, and that, as referred to in paragraph 25 of Mr Higgins’ witness statement, the move to France was seen as a way of better coping.
A previous level of financial support by the deceased to the applicant is helpful
I take on board Mr Willetts’ point that we are presently concerned with Mr Higgins’ maintenance, and not the maintenance of others. However, bearing in mind that Mr Higgins is currently dependent upon Claire’s income, I consider it relevant to consider the other calls that there might be upon that income, which might otherwise mean that the income was not available to meet Mr Higgins’ own needs. Thus I consider it entirely appropriate that the budget produced includes the cost of providing food for other members of the family, and providing for the medical needs of other members of the
Care and support of others (for example, but not the case here, a disabled child)
Paras 116 to 122:
- I accept that, given that one is essentially concerned with an objective exercise, and that the key question is as to whether reasonable provision has been made for Mr Higgins’ maintenance, the Deceased’s expressions of
testamentary intention are of limited value for reasons that have already been mentioned in this judgment. However, as Goff LJ himself recognised in In re Coventry at 489A, an express reason for rejecting the applicant may
be relevant to the “problem”. But so equally, as I see it, a reason for wanting to make provision for a particular party in that it might, for example, point to a perceived moral obligation that is relevant to the objective exercise in hand.
- I accept Mr Higgins’ evidence that the Deceased did, at some point, explain that he intended to equalise matters as between Mr Higgins and Heather when it came to making a will. One can only speculate as to the reasons why there was no will found upon the Deceased’s death, but this conversation does, as I see it, point to the Deceased considering himself under some continuing obligation to Mr Higgins, albeit not for his maintenance as such, given his gift to Heather.
- I do consider it to be a relevant consideration that the Deceased was, as I find that he was, close to Mr Higgins, and vice versa. This is in contrast to the Defendant beneficiaries, albeit that the Deceased did maintain contact
with the latter.
- As conceded by Mr Willetts, albeit not to the extent of accepting that the same gives rise to the requisite “something more”, the fact that the Deceased intended to provide £10,000 to fund the purchase of the video equipment in the context of the move to France, does provide the basis for some form of moral claim. However, I consider that this particular intended gift requires to be considered in the wider context of the Deceased providing assistance to Mr Higgins when required at times of particular difficulty as described by Mr Higgins.
- Although Mr Higgins might have said what he did in paragraph 61 of his first witness statement regarding obligations and responsibilities, I consider that I am entitled to take into account the fact that the Deceased did provide the assistance that he did in respect of Mr Higgins’ finances when the need arose, in addition to the fact that he had said that he would specifically fund the video photography equipment.
- It is also highly relevant that the Deceased was close to Mr Higgins up to his death, in contrast to the position of the Defendant beneficiaries.
- In the circumstances, I consider this to be a claim founded on more than simply the relevant relationship and a need for maintenance, and that there is sufficient within the above to provide the requisite “something more” to support the claim that reasonable financial provision was not made for Mr Higgins by the Deceased for whatever reason.
A “moral claim” or “something more” than just the relation between the deceased and applicant – this can be satisfied by vague promises of support, the closeness of the relationship and evidence that assistance was previously provided.
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