Musings On Claims By Adult Children For Financial Provision
Will claim Solicitors, specialist no win no fee will dispute and will contest Solicitors, consider claims by adult children for financial provision
What is a financial provision claim for adult children in relation to a will dispute and will contest claim
We considered this in our earlier blog this month. It is quite often the case that even though an adult child cannot challenge his or her parent’s last Will, they can maintain a claim against the estate for financial provision under the Inheritance (Provision for Family and Dependants) Act 1975.
Our previous blog can be found at the following:
Typically and for the case to succeed, the adult child in question must:
- be reliant on state benefits
- not working because of a health issue or for some other reason which isn’t their fault (perhaps because he/she is a carer for a disabled child)
- have reasonable financial needs which are unlikely to be met by the state (benefits).
The last point is usually a given where there is complete reliance on state benefits – it appears unlikely that state benefits will provide adequate funding and/or that the provision of care (funded by the state) is likely to be adequate. For information about the adequacy of state benefits verse reasonable needs, it is sometimes helpful to refer to the Joseph Rowntree Foundation Minimum Income Standards:
Hanbury v Hanbury 17 July 1998  2 FLR
This is a good case to refer to in relation to adult child financial provision claims, in particular where the adult child has health issues and is wholly reliant on state benefits. For general information the following article is quite good.
Whilst it is a little out of date, there are elements to it which one can deploy, acting for the Claimant, to spike typical defences. By way of example, the following are two typical defences to adult child financial provision claims in contested or disputed Will matters, which I come across with monotonous regularity:
- your client (the adult child Claimant) has no financial needs because they are provided for by way of benefits;
- your client’s benefits will be adversely affected by an award in excess of say £16,000 (or whatever the current capital limit is) and it is not therefore of any benefit to him/her for the Defendant to pay him/her more than this.
In response, the practitioner can refer to extracts from Hanbury, for example:
“I have noted that in Re Collins (Deceased)  Fam 56  2 FLR 72, Hollings J dealt with the argument that since there was support for that applicant by the DSS, there could not be a failure to provide reasonable provision and that no financial provision should be awarded under the Act. He said at 61H-62A and 77E respectively:
I do not consider that the fact of support from the DSS precludes consideration of whether the testator has or has not made reasonable financial provision for her.
There are other quotes relied upon by Judge Bromley QC in Hanbury which also assist, whereby it is maintained that reasonable provision “is not limited to keeping a dependant above the breadline” and “….what maintenance means. In effect it means what is sufficient to enable the applicant to live decently and comfortably according to the station in life to which she has been called. It does not merely mean enough to bring her to subsistence”
Moreover to avoid the financial provision award impacting on state benefits Judge Bromley QC made an Order whereby the payment was made into a discretionary trust (which it seems he found he had the power to make under s. 2(1)(d) of the Act). He said as follows:
“I am asked to order a payment into a discretionary trust, of which Celia is the principal beneficiary. I do not accept Mr Behrens’ submission that the creation of such a trust, with Celia a discretionary beneficiary, would not be a settlement for the benefit of Celia within s. 2 (1) (d) of the Act. On the evidence before me, the payment of capital into a settlement of the discretionary nature proposed would not jeopardise income support”
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 and/or visit us at www.willclaim.com.
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