If you live in England and Wales then the administration of your estate will be carried out according to the law of England and Wales. You may leave what you want to whom you want. This is known as testamentary freedom. However, you need to be aware of the Inheritance (Provision for Family and Dependants) Act 1975 which gives certain people the ability to challenge a Will if they feel they have not received sufficient provision in the deceased’s Will. Only certain people are entitled to make an application to the court for an order. Broadly speaking, these are the immediate family of the deceased, or their partner if they were living together as husband and wife (or as civil partners).
There is only one ground for a claim under the Inheritance Act, which is that the disposition (or division) of the deceased’s estate does not make reasonable financial provision for the applicant.
Where the applicant is a spouse, or a civil partner, of the deceased, ‘reasonable financial provision’ means such provision as would be reasonable in all the circumstances of the case for a husband or wife or a civil partner to receive, whether or not that provision is required for his or her maintenance. The court must consider, but is not bound to follow, the likely settlement that would have been made within divorce proceedings, if the parties had divorced rather than the deceased having died. You may hear this referred to as the ‘divorce fiction’.
For all other applicants under the Inheritance Act, ‘reasonable financial provision’ means such provision as it would be reasonable in all the circumstances of the case for the applicant to receive for his maintenance. Thus the court will not make an order in these circumstances only because the applicant feels that the Will or Intestacy is unfair or is not as they expected. The applicant must show that he had a reasonable expectation of having his living costs met by the deceased. If the applicant was financially independent of the deceased before the date of death, it may be very difficult to show such an expectation.
Soaring property prices, rising levels of dementia and second marriages have prompted an increase in legal disputes over wills. The courts treat each claim on the facts of the case, so is there anything that can be done to try and ensure a claim is unsuccessful?
If you have strong views about not providing for someone it is very tempting to put a phrase in your Will such as “I have deliberately not made any provision for my son John Smith”. Sometimes we are asked to include a phrase such as “I leave my son John Smith five thousand pounds on condition that he does not challenge my Will”. However, please remember that every Will becomes a public document and you may not want future generations of your family to see such phrases in your Will.
Each client has their own wishes and circumstances but normally, in such circumstances, we tend to favour that the person concerned is not mentioned in the Will. We suggest to our clients that they then create a side letter addressed to their executors explaining why they have made no provision for this person. If a claim was made against the estate, then the executors would bring the letter to the attention of the Court.
Non-provision claims can be lengthy and complex. The Ilott v Mitson case which received much media attention earlier this year had been in the courts for some ten years before the UK Supreme Court made the final ruling.
If you are thinking of not providing for a close family member please do not hesitate to contact us so that one of our consultants can visit you to discuss your circumstances. Please telephone 01732 868190 or click here to book an appointment.
Thank you to our clients Mr & Mrs I of Colchester who asked us to post an article on this sensitive subject. If you would like us to post an article on a particular subject please do not hesitate to contact us.