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Testator’s children’s claims…..needs Vs wants is the key to success.

It has become clear following recent client meetings that the lines are being blurred between the sense of entitlement held by a Testators offspring and a ‘need’ of adult children as prescribed by the Inheritance (Provision for Family and Dependants) Act 1975 (“the 1975 Act”).

The 1975 Act is often hailed to be the biggest barrier to freedom to dispose of your estate as you choose in this country. Claims under the 1975 Act are bought by individuals, often children of the deceased, who consider that the Testator has not made adequate financial provision for them in the will. In fact the courts take quite a dim view of applications made by adult children who bring claims even if they have been omitted from the estates entirely.

In the recent decision of Miles and Another v Shearer [2021] EWHC 10000 (Ch) the judge held that: “I do not consider that either claimant (the deceased’s two adult daughters aged 40 and 38) can demonstrate needs for maintenance which they cannot meet, if necessary, by adjustment to their lifestyle.” The sisters had claimed for maintenance to replace the generous financial provision their father had provided during his lifetime. The finding against ‘need’ was fatal to the success of their claim.

This sense of entitlement was also reflected as ‘absolutely hopeless’ in Shapton v Seviour [2020] 3 WLUK 537 where the judge openly criticised the daughter for being motivated by that rather than any kind of need.

Contrast this with a case that has recently come across my desk whereby a testator had left the majority of her estate including the family home to a charity. It was stated as her wish that her elderly son who suffered from learning difficulties could remain at the property for the rest of his life, although the Will did not include any obligation on the Charity to do. The son who now lives alone with support in the property has a diminishing pot of monies which, on current estimates will last between 3- 4 years. Thereafter he will be obliged to seek housing support and potentially housing if the charity successfully sells the property to a developer.

This is a clear case of need and it is likely that any court would look very carefully at the construction of the original will and the provision that was made for the son. There would have been a reasonable expectation that the son’s needs would have ensured that he would benefit from his mother’s estate to the extent that he would have a home and financial support for the remainder of his life.

Similarly the courts have recently held in favour of a deceased’s two children where their late father failed to make any provision for them in his Will. His estate elected to rely on the fact that due to ill health the mother of the children had not sought financial maintenance in his lifetime, but Master Teverson stated that “ only in the most exceptional circumstances would I expect the court to accept that the obligation to maintain had been completely severed. The concept of a clean break is not generally applicable in respect of child maintenance.” Re R (deceased) 2021 EWHC 936 Ch.

So does the 1975 Act erode the Testators rights to freely distribute their estate as they choose? I don’t believe you have anything to fear; but it is clear that the courts will consider testamentary freedom is very closely aligned to the beneficiaries ‘needs’ or sense of entitlement if any of your offspring seek to make a claim.

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