MY STEPFATHER DISINHERITED ME – WHAT CAN BE DONE ABOUT IT?
A lesson from the past? What can happen to your inheritance when your mother or father remarries?
In a heart wrenching article, Jane Cassell recounts how her mother remarried when she was 9 years old and then a year later on holiday in north Africa, died from a heart attack (https://www.telegraph.co.uk/women/life/know-bitter-experience-parents-need-make-new-will-remarry). She hadn’t made a Will. It seems there may have been a previous Will. However, as Jane Cassell writes, “it’s a little known legal fact that marriage cancels existing Wills, unless special wording is included”.
Section 18 of the Wills Act 1837 confirms that a Will is revoked by marriage except in certain circumstances (http://www.legislation.gov.uk/ukpga/Will4and1Vict/7/26/section/18). For Jane the situation was a double tragedy. She lost her mum and was then disinherited because on intestacy the husband was entitled to the whole of her mother’s (probably) modest estate (Note: a larger estate is likely to have yielded an entitlement to 50% of the balance after deduction of a lump sum for the husband and to the remaining 50% once her new husband had passed away).
It appears that there were subsequent legal proceedings to attempt to recover something for her but they were not successful as Jane writes “…the legal battle went on for years until a judge ruled that everything went to my stepfather”.
What can be done to claim your inheritance after your mother or father remarry now?
Whilst I can’t analyse what went wrong with Jane’s legal proceedings, I find myself a little surprised that she wasn’t entitled to anything. In 1975 the then government enacted the Inheritance (Provision for Family and Dependants) Act 1975 (a statute which replaced and updated similar earlier statutes – https://www.legislation.gov.uk/ukpga/1975/63.).
It was designed to protect infant children from exactly this issue. Whilst more difficult when adult children are involved (but not impossible), I cannot conceive that in this type of scenario now (rather, to be fair, than when Jane was a child), she wouldn’t receive a significant award.
It is quite clear from the Act that it had in mind the protection of (infant) children (although as mentioned, adult children who are at least as vulnerable as an infant child can expect to be protected by it too). For instance under section 3(3) (https://www.legislation.gov.uk/ukpga/1975/63/section/3) the court must have regard to the manner in which the applicant (the child) is being educated or trained. What might have adversely affected Jane’s case is 3(3)(c), by which the court is expected to take into account the liability of any other person to maintain the applicant (child). I gather her father “had a good job” at the time. Nevertheless, her mother had only been married for a year. I would expect the full sympathy of the court to fall squarely onto Jane’s side. At the very least the prospect of huge legal costs which are unlikely to be recovered from an infant child would have brought most logically thinking people to the table to seek to compromise her claim.
An example of children disputing their father’s Will – Ubbi and Ubbi v Ubbi (2018) EWHC 1396 (Ch) (https://swarb.co.uk/ubbi-and-anotheri-minors-v-ubbi-chd-27-jul-2018/)
I have referred to this decision before. It was a claim by the infant children of Malkiat Singh Ubbi who disinherited his children. He left an estate valued at £4.5M for probate purposes. His children were awarded £386,290.60. Granted it was easier in one sense for the Ubbi’s to recover something given the size of the estate, but conversely, as mentioned above, a more modest estate such as Jane’s mother’s should equally have brought the step father to the (negotiating) table much earlier, as even if successful he would not have recovered his costs from the infant children. To be clear to those of you not understanding the significance of this, I can put it like this. If, for the sake of argument it will cost you £50,000 of your own legal costs to pursue a case to trial along with the risk of losing at that trial (and you won’t get your costs back even if you win and your opponent is ordered to pay your costs, because your opponent who is an infant child has no money), it makes commercial sense to pay say £40,000 to the child to resolve the case. This is simple maths. However, I regret to say that Solicitors may have dealt with matters is a less transparent way 30+ years ago, so far as costs and risk and an analysis of the value of a trial verses settlement were concerned.
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