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Inheritance Act Claims by Children of the Deceased – what can be claimed?

| Published on January 29, 2019

If a Will or the intestacy rules fail to provide financial provision for children (both adult and minor) there are particular circumstances in which that child can claim against the deceased’s estate for reasonable financial provision.

Any claim against an estate is governed by the Inheritance (Provision for Family and Dependants) Act 1975 (“the 1975 Act”). Section 1(1)(c) of the 1975 Act confirms that a child of the deceased can make a claim. The 1975 Act goes on to say at S.1(2)(b) that reasonable provision relates to the child’s maintenance. A child cannot make a claim against an estate simply because they are the child of the deceased. They will need to show some requirement for maintenance in order to proceed.

The recent cases of Ilott v Mitson (2017) and Nahajec v Fowle (2017) have refined the 1975 Act in terms of is included as ‘maintenance’. Both Ilott and Nahajec were estranged children of the deceased.

This case of Ilott is notable as it is the first of its kind to reach the Supreme Court. The claimant, the deceased’s daughter, was claiming for reasonable financial provision from her mother’s estate. It is important to note that the claimant and the deceased had a difficult relationship which had periods of no contact between them.

The claimant was initially awarded a £50,000 lump sum to cover her maintenance, which included the replacement of white goods and necessary material items. The claimant appealed this decision on the basis that it would affect her means tested benefits and also not provide sufficient funds to purchase the house she was living in. The Court of Appeal agreed with her and awarded her a total of £163,000. The beneficiaries, who were charities, appealed this decision and the Supreme Court returned back to the initial judgment and awarded the claimant with £50,000, which is 10.3% of the estate.

Lord Hughes stated that maintenance:

Cannot extend to any and every thing which is desirable for the claimant to have. It must import provision to meet the everyday expenses of living.

This judgment also led the belief that estrangement would fatally or severely reduce the value of an award to a claimant.

The later case of Nahajec v Fowle shows that estrangement between the deceased and the claimant may not eliminate the chance of an award.

This case is very similar in facts to that of Ilott in that the claimant, the daughter of the deceased, had periods of estrangement with her father. The deceased left his estate to a friend and left a letter of wishes explaining why he had excluded his three children. One of his children who was unable to work due to disability was awarded £22,000 and the other did not make a claim at all. The claimant made a claim on the basis that she was in financial need and that it was the deceased’s decision not to have contact.

The claimant showed that she had made several attempts to restart her relationship with her father. Furthermore, she also provided evidence that she was looking to re-train as a veterinary nurse. She was working at the time, but was not earning enough to meet her daily living expenses.

The Claimant’s maintenance needs were addressed and the Judge in this instance decided that the claimant’s education to re-train was deemed as maintenance as it would allow the claimant to have a greater earning potential. The claimant was awarded 11.3% of the estate.

The result of these cases affects all adult child claims in terms of maintenance. An award will only be made to cover daily living expenses and will not extend to such things as cars for children or a higher standard of living. Furthermore, Ilott stressed that it is now unlikely that a capital sum will be provided for housing and in such cases where housing is required, it is more likely to be a life interest in the property that is awarded.

Whilst these types of cases usually settle prior to going to Court, these Judgments now set a starting point for negotiations to begin.

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