The Inheritance Act in action post-Ilott
A couple of weeks ago, we published a blog about testamentary freedom following Ilott v Blue Cross – and now we can report on what seems to be the first case decided under the Inheritance Act since the Ilott v Blue Cross decision.
In the first judgement to look at the question of maintenance under the Inheritance Act for an estranged adult child since the landmark decision in Ilott v Blue Cross, a judge has awarded £30,000 to a Testator’s daughter despite his express wishes to disinherit all his children.
The Facts of Nahajec v Fowle
This claim was made by Elena Nahajec. Her father, Stanley Nahajec, made a will on 7 July 2015 by which he disinherited his children – Ms Nahajec, who was his daughter from his second marriage, and his 2 sons from his first marriage. He explained his decision to disinherit in writing, as follows:
“…I have not seen or heard from any of my children in the last 18 years and I do not believe they have any interest in me or my welfare.
All of my children are of independent means and have or have had their own life and family and are, to my knowledge, sufficiently independent of means not to require any provision from me.
In the circumstances I do not feel it appropriate for (sic) necessary to make any provision for them in my will…”
Mr Nahajec died on 19th July 2015, shortly after making his will. His daughter brought the claim arguing that the estrangement was due to the actions of the Testator rather than any behaviour on her part. She argued that she had attempted to rekindle the relationship on several occasions, but that he had always rebuffed her attempts, and had ‘never been there for her’ as she grew up. Having heard evidence from one of Ms Nahajec’s half-brothers that he had received similar treatment by his father, and reviewing the decision of the Supreme Court in Ilott v Blue Cross, the judge decided:
- Mr Nahajec’s will did NOT make reasonable provision for his daughter
- The estate was of sufficient size to justify provision for the daughter, as well as provision for the sole beneficiary and other claimants (the claimant’s half-brother had also made a claim which had been settled)
- Financial provision should be made in the sum of £30,000
The importance of the facts of each case
The facts of this case may seem very like those in Ilott: an estranged daughter who had made attempts to maintain a relationship with the deceased parent. The judge made it clear that his decision was not made because of the similarity to the facts in Ilott, but as the result of the facts in the case before him. Every case will be different, and so must be dealt with on its own facts, and not because it is similar to a previous case.
The judgement in this case demonstrates clearly the balancing act the court should carry out, weighing up all the factors to determine the issues in the case. Recognising that the case was fact specific, the judge went on to weigh up the circumstances of both the claimant – the estranged daughter, and of the sole beneficiary under the will. The judge was clearly impressed by the honesty of the Testator’s daughter and the relatively modest nature of her claim. She sought money only to enable her to complete a veterinary nursing course.
Assessing financial provision
The Claimant had initially claimed the sum of £70,227 to cover a number of elements including fees to cover resitting GCSEs to enable to gain the appropriate qualifications to then go on and train as a veterinary nurse; the fees for the veterinary nursing course; transport costs whilst on the veterinary nurse course including the purchase of a car; a sum to discharge indebtedness; and a sum to cover her living expenses while she studied. The proposal was reduced following a concession that the fees for the veterinary nurse course could be funded by a student loan.
The judge considered that an award simply to cover the Claimant’s indebtedness would be too little, but that an award of £59,000 (the original amount claimed less the veterinary nurse course fees) would be too high. He was considering a claim by an adult child, not a spouse, and as such had to confine his award to ‘maintenance’. He therefore awarded £30,000 as being a reasonable amount – his “…best estimate of the capitalised cost of maintenance for a reasonable time going forward to take into account the possibility, albeit contingent, of the claimant undertaking a course which ultimately results in her becoming a veterinary nurse and which enables her to look after herself financially if such a course is undertaken.”
Any claim bought under the Inheritance Act by an adult child will depend on the facts of the specific case, so this is a useful illustration of how the facts might play out – in the balancing act that must be carried out by the judge deciding the different elements of the claim. If you feel that your parent’s will fails to make reasonable provision for you, we can help talk you through the issues and work out the best way forward. Get in touch with us today.