For those considering who to leave their estate to after they die, a tricky dilemma can often arise when considering the question of their own children. For various reasons, a testator may not consider it appropriate to leave anything to their child or children under their will.

 

Perhaps they already have sufficient income or they would prefer to leave their estate to charitable causes. Alternatively, they may not wish to leave anything to your children for personal reasons. Whatever the reasons, the principle of testamentary freedom will allow someone making their will, subject to meeting the necessary formalities, to draft a will that leaves their estate to whoever you wish.

 

However, testators must be aware of the risk of a challenge to such a will and a will dispute arising. In particular, a child may decide to make a claim under the Inheritance (Provision for Family and Dependants) Act 1975.

 

A child of the deceased is permitted under the Act to make a claim that reasonable financial provision has not been made for them under the will.

 

That is not the end of the story for the claimant though, as the court will have regard to various factors:

 

Listed under section 3 of the Act, these are:

 

a.    The financial resources and financial needs which the applicant has or is likely to have in the foreseeable future;

 

b.    The financial resources and financial needs which any other applicant for an order under section 2 of this Act has or is likely to have in the foreseeable future;

 

c.    the financial resources and financial needs which any beneficiary of the estate of the deceased has or is likely to have in the foreseeable future;

 

d.    any obligations and responsibilities which the deceased had towards any applicant for an order under the said section 2 or towards any beneficiary of the estate of the deceased;

 

e.    the size and nature of the net estate of the deceased;

 

f.     any physical or mental disability of any applicant for an order under the said section 2 or any beneficiary of the estate of the deceased;

 

g.   any other matter, including the conduct of the applicant or any other person, which in the circumstances of the case the court may consider relevant.

 

Such a claim was intimated in the recent unreported will dispute case of Rochford v Rochford [2021].

 

In this case, the claimant, Lynne, daughter of the deceased, was successful in her application under the Act, which saw her maintenance from the estate increased by £85,000.

 

The Court had regard to the following factors in favour of Lynne:

 

·  Due to health reasons, Lynne’s employment prospects were poor;

 

·  The main beneficiary, Ilva (sister of the deceased and defendant), owned her own home mortgage free, owned additional land and had access to both state and private pensions.

 

The case demonstrates the potential for success that adult children can have under the Inheritance (Provision for Family and Dependants) Act 1975, and the need for testators to exercise caution if they are considering leaving their children out of their will.

 

If you would like to discuss the issues raised in this blog, or you would like advice about a will dispute or any type of contentious probate case, please call 01902 424927 and ask to speak to one of our specialist contentious probate lawyers. Alternatively, please e-mail us at contentiousprobate@georgegreen.co.uk providing a brief summary of the issues you wish to discuss with us, along with your contact details.

 

We have a dedicated practice team of contentious probate solicitors, covering all areas of the UK (with offices near Birmingham and in Wolverhampton) who are experienced in dealing with all types of contentious probate matters, including challenging a will and probate administration disputes and inheritance disputes.

 

We also have a team of probate lawyers who can assist if you wish to review you current will or to make a will for the first time.

 

We offer an initial no obligation telephone consultation for contentious probate disputes and we can sometimes act for clients who want to contest a will or commence an inheritance dispute/probate dispute on a no win no fee basis.