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Children successful with inheritance claim

View profile for Rachel Leech
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Children successful with inheritance claim

If you have been excluded from a loved one’s will, or are a beneficiary of an estate who should have received more, you may be able to make a claim against the estate.

In a recent case two children, J and H, made a claim against their father’s estate under the Inheritance (Provision for Family and Dependants) Act 1975 (“the Inheritance Act”). One of them was under 18 and still in school so the judgment was anonymised. The deceased father was married to J and H’s mother, N. The marriage ended in divorce in 2012. 

The background of the case

The deceased initially paid maintenance for J and H after the divorce. The payments reduced as his earnings dropped. There was then a disagreement through the Child Support Agency. It ended as N, for reasons which were disputed, ceased the claim.

In July 2013, N moved to Scotland and took her children with her. The deceased only found out a few days before. A court awarded contact but the telephone calls stopped very soon after they started, and contact ceased during 2014. The deceased continued to send Christmas and birthday cards to his children.

The size of the estate was difficult to ascertain as it largely comprised shareholdings in companies the deceased owned with his parents. The court approached the claim on the basis that the net value of the estate assets were worth between £519,081 to £720,481.

The deceased’s will

The deceased made a will dated 1 June 2018. He gave some of his shares worth £77,037 to his parents, and the rest of his shares and the residue of his estate (approximately £722,608 of the gross estate) to S, the long-term partner of the deceased.  

The deceased made no provision for J and H, and wrote a letter stating that he did not wish for his children to benefit from his estate. He wrote a letter referring to N moving to Scotland with her new husband, and that he was unable to make contact with J and H for over three years. He said that N had made it clear that she did not want him to be part of J and H’s life. 

The Statement concludes "therefore I do not wish for them to be a part of my family's life on my death and believe that J and H do not require any financial provision bearing in mind (N) has not agreed for the Child Support Agency or any other personal agreement in relation to maintenance payments". 

The inheritance claim

N acted as a litigation friend for her children, as they were too young to act for themselves when the claim started. N initially entered a caveat to prevent a grant of probate as she believed the deceased’s 2018 will was invalid. After receiving advice, she reluctantly accepted advice to instead pursue a claim for reasonable financial provision for her children under the Inheritance Act. 

As children of the deceased, J and H were eligible to bring a claim under the Inheritance Act. Other eligible people who can claim are:

  • a spouse or civil partner, 
  • ex-spouse or civil partner, 
  • a cohabitant, 
  • a person maintained by the deceased and 
  • someone treated as a child by the deceased person. 

As a child of the deceased, J and H’s claim was limited to what would be reasonable for them to receive for their maintenance. The issue before the court was therefore whether the deceased’s estate should be required to provide for their maintenance until they are in a position to earn a reasonable wage. If so, how much that should be.

The first thing the court must consider is whether the deceased’s will made reasonable financial provision for J and H. The court found that the deceased’s will did not provide them with reasonable financial provision as they received nothing. 

When assessing claims under the Inheritance Act, there are a number of factors the court will consider. With every type of applicant, these factors are: 

  • The financial resources and needs that the applicant has or is likely to have in the foreseeable future. 
  • The financial resources and needs of any other applicant
  • The financial resources and needs of any other beneficiaries, both now and in the foreseeable future 
  • The obligations and responsibilities owed by the deceased to any applicant and towards any beneficiaries
  • The size of the net estate
  • Any physical or mental disabilities of any applicant or any beneficiary
  • 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.

J and H each had savings between £2,000 - £3,000. They have no other assets and were not in receipt of any income. They are dependent upon their mother and her husband for their needs. 

N provided schedules detailing J and H’s financial needs. The schedules included:-

  1. Current and future living expenses. These are said to be the expenses of maintaining J and H when living at home;
  2. School related expenses including school fees and school extras;
  3. Car related expenses;
  4. University costs including tuition fees (where applicable) and university accommodation costs;
  5. Future housing costs; and
  6. Psychology/counselling costs.

For J, the schedules totalled £353,518.70 and for H it totalled £458,431.00. The schedules included the full amount of J and H’s maintenance from the date of the deceased’s death. 

The Judge said that it was not right that the entire maintenance obligation should be shifted to the deceased, especially when child maintenance was not sought from him after the CSA assessment ceased.

The court then went on to consider N and her husband’s finances and their decision to send J and H to an independent school in Scotland. The deceased was not consulted about this decision. 

In relation to the financial provision of the other beneficiaries, S has a property portfolio with equity over £1m, and from which she receives a net income of £20,934. She also has around £205,000 in savings. 

After the deceased died, she paid off £40,997 on the Lamborghini car owned by the deceased and made a payment of £60,000 to the estate to pay administration costs.

S also owned a property jointly with the deceased which passed to her upon his death. S also received £40,755.58 from the deceased’s life insurance policy. She used part of that to reimburse herself for payments she made for the estate. The balance was transferred to solicitors and most of it was used to pay the first Inheritance tax instalment. 

The deceased’s parents owned the remaining shares in the same companies as the deceased. They have combined savings of £83,000, but these have been depleted by legal fees and relied on these savings for private health care. 

They own their own home, and three other properties they rent out. Their properties have a net equity value of around £1.33m and they have a combined income of £52,460. 

As the applicants were children, the additional factor the court must consider is the manner in which J and H were being or might expect to be trained or educated. The Judge found that there was an expectation that J and H would be educated privately.

The Judge found that it will not generally be open to beneficiaries to rely on the fact that the deceased failed to provide child support or to rely on the child being treated as a step-parent as their child. However, lack of contact and the assumption of responsibility by someone else are factors capable of impacting the value of the claim. The Judge found that only in the most exceptional cases would the court accept that the obligation to maintain had been completely severed.

The Judge found that the deceased’s estate should not be responsible for all of J and H’s maintenance and that their mother should still be partially responsible.

The court’s decision

The Judge there decided the deceased’s estate should provide them with reasonable provision. The court awarded 50% of J and H’s ‘home living costs’, counselling, car related expenses, university accommodation costs, and 80% of their school costs. With university fees, the Judge said that if H decides to go to an English university where he will have to pay tuition fees, he should obtain a student loan to finance his tuition fees. 

The judge found that the size of the estate was not large enough to buy H and J a property each. Instead, it was decided that accommodation for a year after university would be reasonable and awarded 50% towards the cost of rent, furniture and letting fees. In total, J was awarded £68,022 and H was awarded £117,962.

If you have been excluded from a loved one’s will, or are a beneficiary of an estate who should have received more, you may be able to make a claim against the estate. If you would like advice about a contentious probate claim, please contact Rachel Leech, who is an Associate Solicitor in Birkett Long’s contentious probate department,  on 01206 217623 or rachel.leech@birkettlong.co.uk.

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