In England and Wales we have complete testamentary freedom. This means that we can choose to leave our assets to whom we like when we die whether that be our spouse, between our children, or the local cat’s home. There are no rules of forced heirship applying, as in some European countries.
The principle of testamentary freedom sits, however, somewhat uncomfortably against a piece of legislation known as the “1975 Act”, formally the Inheritance (Provision for Family and Dependants) Act 1975. This legislation allows certain categories of person (including spouses, children and anyone who can show they were dependent upon the deceased immediately prior to the death) to apply for financial provision from an estate on the basis that what has been provided for them, whether that be nothing or only a little, is unreasonable.
Much of the recent case law has involved claims brought by adult children where the estate has either been left to the deceased’s second spouse or to charity. Much has been made of the case of Ilott v Mitson, the final appeal of which is due to be heard by the Supreme Court in December. The case involves an estate worth approximately £500,000 which was completely left to charity, rather than to the offspring of the deceased. For the Court to assess in December is the remaining contentious point of whether or not charities can be considered to have the same “financial need” as individuals, such as the offspring in question.
Much more common are claims by adult offspring against estates where their late parent has left the entire estate to a subsequent spouse. This situation applied in the recent case of Ames v Ames (and others) heard in August 2016 at the Central London County Court. This case is an example of how the courts generally treat claims by adult children. In this case, Danielle Ames (aged 41) applied for financial provision from the estate of her late father Michael Ames who had chosen by way of a will to leave his entire estate to his second wife, Elaine Ames. In dismissing Danielle’s claim, the residing Judge compared the relative financial positions of the parties but focused on the fact that Danielle was of working age and suffered no disability which could prevent her from earning an income. Elaine, on the other hand, was aged 63 and could not be expected to return to work when she had already retired. There was no special circumstance or particular moral obligation in the case to support any viable claim that it was unreasonable for the late Mr Ames not to provide for his adult daughter in his will.
The outcome of this case is unsurprising. It is clear from the case law that claims by adult children rarely succeed save for in special circumstances. These may include situations where the offspring has worked for a parent in detrimental reliance on an understanding that they would inherit a family business for example, or they lack earning capacity due to a physical or mental disability. The size and nature of the estate in question is also undoubtedly relevant as the court will have to consider the ability of the estate to provide for the claimant as against or perhaps in addition to the beneficiaries of the estate.
Our team are highly experienced in respect of how the courts approach adult child 1975 Act claims and can be instructed in either defending such claims or pursuing them where special circumstances can be shown. For further information or advice, please contact Hannah Young in our Contentious Probate team on 01234 270600 or email firstname.lastname@example.org