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Wills – What about your Children?

Wills – What about your Children?
May 26, 2021 Andrew McManus

Wills – What about your Children?

In a world of second marriages and blended families it is becoming increasingly common to see children, step-children or other family members being “cut out” of Wills.  Often the reasons for not including certain people in a Will are documented by the person leaving the Will at the time they make their Will.  However, that Is not the end of matters…

The Inheritance (Provision for Family & Dependents) Act 1975 (“the Act”) provides that certain categories of Claimant may apply to the Court for an Order under the Act, on the grounds that the disposition of the Deceased’s estate as set out in their Will does not make “reasonable financial provision” for them. In these cases “reasonable financial provision” is a legal term meaning such financial provision as it would be reasonable in all the circumstances for the applicant to receive for his maintenance.  The concept varies between each case and the Court is reluctant to draw hard and fast rules.

The recent case of Re: The Estate of R (Deceased) saw two children, J and H who were 18 and 17 at the time of the Court hearing, bring a claim under the Act after the death of their father, R.  R died in 2018.  R’s Will left nothing to J and H who lived with their Mother, N.  The Court heard that N and R had divorced in May 2012 and N, J and H moved from Norfolk to Scotland shortly afterwards.  R did not pay child maintenance or otherwise support J and H, seemingly because their mother, N, closed her own case with the Child Support Agency.  The Court accepted that J and H had nothing to do with their father after about 2014.

In a statement prepared with his Will R said he had not been able to make contact with J and H for over three years. The statement concluded – in slightly hurtful terms – that R did not wish for J and H to be a part of his family’s life on his death and stated his belief that J and H did not require any financial provision given there were no maintenance payments being made.  The beneficiaries under the Will adopted this approach in defending the claim.

However, the Court stated that it is not open to beneficiaries to rely on the fact that a Deceased failed to provide child support (even if not called upon to do so). Lack of contact and the assumption of responsibility by another person are factors capable of impacting on the value of the claim, not eligibility under the Act. Only in the most exceptional circumstances would the Court accept that the obligation to maintain a child had been completely severed. The concept of a clean-break is not generally applicable in respect of child maintenance.

As a result of the Judge went on to consider the schedules put forward by J and H and awarded them a joint total of c.£186,000.00 for their ongoing maintenance and educational needs.

This Judgment reinforces the difficulty in denying minor children reasonable financial provision even if they are estranged from a Deceased parent.

Andrew McManus, Civil Litigation and Contested Probate, Partner, Enoch Evans LLP

If you need help in dealing with a Will, or think you may have a claim against an Estate, call our dedicated teams on 01922 72033 (Walsall Office) or 0121 355 2336 (Sutton Coldfield Office).