Contentious Probate – Share of a parents estate

“A son can bear with equanimity the loss of his father, but the loss of his inheritance may drive him to despair.” Niccolo Machiavelli

That a person can gift their estate in a Will to whomever they wish is an assumption many make and to some extent that is true.  While other countries have laws that dictate how an estate will pass on death, the UK gives the individual freedom to decide how they would like their estate to pass on their death.

However, it is increasingly common to read in the press about claims by adult children who have been cut from their parent’s Wills.  What, if anything, can they do about it?

The Inheritance (Provision for Family and Dependents) Act 1975 (“the Act”) allows defined classes of people (usually related or closely connected to the deceased) to claim a share of the deceased’s estate.  These categories include “a child of the deceased” and “a person who was treated as a child of the family by the deceased”.  A “child” includes adults as well as minors.

In the case of a “child” the Act provides that they may bring a claim if the Will fails to make adequate financial provision for their maintenance needs.

Thus the “child” applicant has to show both:

  • The Will doesn’t make adequate financial provision for them;
  • They have a need for maintenance from the estate.

Thus a Will may make provision for the “child”, but circumstances may mean that it is not adequate.  Or the Will may make no provision for the “child”, but they may not have a need for maintenance.

The requirement to show a need for maintenance makes it clear that a “child” has no automatic right to a share of their parent’s estate.  What amounts to a need for maintenance has to be considered on a case by case basis – but it shouldn’t generally be confused with the approach taken to maintenance in either divorce cases or in the case of a claim under the Act by a surviving spouse or cohabitee.

The Act sets out a number of factors that a Judge has to weigh up in these cases.  These include the reason why an applicant may have been cut out, the size and nature of the estate as well as the needs and circumstances of others whether provided for in a Will or who may also have claims.

The amounts awarded to a ”child” applicant have been modest.  The presumption is that a “child” of working age and capacity will be able to maintain themselves to reasonable standard of living in which case the adult child will not have a viable claim.  The Act is there to provide a means of recourse in appropriate cases where there is a need for support.

In practical terms, if you are looking to make a Will and are worried that a claim may be made after your death then you should discuss this with the person who is drafting your Will – your reasoning behind any exclusion should be adequately recorded in the event of a future claim being made as it is a potentially relevant factor.

If you have lost a parent, haven’t been provided for in their Will (or haven’t been adequately provided for), and have a genuine need for financial provision then please feel free to contact our Commercial Litigation team as you may have a claim to some provision.  This is so even if you had a difficult relationship with the deceased or were estranged from them.  In themselves, these are not necessarily bars to bringing a claim.

Our dedicated Private Client team are on hand should you have any queries in relation to your existing Will, or should you need assistance drafting one from scratch.

For further advice our Commercial Litigation team are reachable on 01582 731 161 or our Private Client team on 01727 845 245 or request a call back.