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Parents do not always succeed in excluding their children from inheriting their estate

A claim for financial provision by an adult child under the IPFDA 1975 is often difficult. Living in necessitous circumstances is not sufficient to justify an award. An important consideration will be what obligations and responsibilities are owed to the adult child by the testator. Blood ties are not enough to succeed on a claim because they do not on their own generate a legal or moral obligation on the part of the testator.

Something more

The courts generally look for something more. What is meant by this is difficult to define but broadly means the existence of some relevant special circumstances. A claim by an adult child, without any evidence to show special circumstances, will generally fail. Good examples of what have been accepted as special circumstances include:

• The adult child applicant having looked after their deceased parent.
• Promises having been made by the parent giving the child a genuine expectation that they would inherit.
• The applicant's earning capacity is limited or non-existent owing to physical or mental disability and they are not therefore able to improve their personal and financial circumstances via paid employment.
• The deceased wholly or partly supported and maintained the applicant.

The issue of whether something more exists is usually assessed within the context of considerations involving section 3(1)(g) of the Act which requires the court to consider any other matter that might be relevant, including the conduct of any party. It is in this context that the weight to be attached to testamentary freedom/wishes of the testator feature.

Testamentary Freedom

It is important to remember that the courts will only intervene to vary the distribution of an estate in favour of an adult child if they can demonstrate a maintenance need. This is an important legislative choice and demonstrates the significance still attached to testamentary freedom which is embedded in the structure of the legislation.

The importance to be given to testamentary freedom was discussed by the Supreme Court in the case of Ilot v Blue Cross [2017]:

"…it cannot be ignored that an award under the Act is at the expense of those whom the testator intended to benefit…It is not the case that once there is a qualified claimant and a demonstrated need for maintenance, the testator's wishes cease to be of any weight. They may of course be overridden, but they are part of the circumstances of the case and fall to be assessed in the round together with all other relevant factors."

The court made clear therefore that testamentary freedom was not a predominant factor but one to be considered in the round alongside all other relevant factors.

However, Lady Hale went on to say in her judgment that:

"…the greater the weight attached to testamentary freedom, the smaller the provision which might be thought reasonable…It is …a value judgment."

Testamentary freedom and the weight to be attached to the testator's wishes as expressed in the Will or the intestacy rules (and possibly a letter of wishes) is to be weighed under section 3(1)(g) of the Act as part of the overall exercise of reaching a value judgment. This is in keeping with legislation in the modern era in the form of the IPFDA and its predecessors which modify considerably the notion that English law gives testator's unrestrained freedom to dispose of their assets by Will in whatever way they wish.

The conduct of the applicant and the nature of the relationship between the applicant and the testator will often operate to determine what weight should be attached to the testator's wishes. The court will look objectively at the reasonableness of the testator's wishes, the testator's knowledge at the time of making the Will including the accuracy of facts that were known by the testator and lie behind the Will, whether the testator had an intention to change the Will and the reasons for the planned changes and the consistency/duration of time over which the testator held the wish.

The decisions of the courts

In Ilott the adult daughter had been estranged from the testator on and off for twenty years. The court awarded a sum equating to 10% of the testator's estate. The court made clear that the closeness of the relationship and any estrangement will be relevant and reiterated that an award is not to provide a wealthy lifestyle but to meet the everyday expenses of living.

Several cases have followed the Ilott decision in which testamentary freedom does not appear to have been an overriding feature when set against the applicant's financial needs and the balance to be struck with the needs of the beneficiaries of the estate:

• In Cowan v Foreman [2019] the Court of Appeal said that the first instance judge had fallen into the trap of assessing whether the testator's wishes were reasonable rather than whether reasonable financial provision had been made for the applicant, was wrong to have assumed that a letter of wishes for trustees of two discretionary trusts would be complied with by the trustees and wrong to have concluded that she would have a claim against them if they decided not to follow it.
• In Delaforte v Flood [2019] the court provided an award to the deceased's adult granddaughter, who had given up her professional dancing career to care for the deceased. The court ruled that the award made "represents reasonable financial provision for her maintenance".
• In Rochford v Rochford [2020], the court made an award to the adult daughter of the deceased; whilst she owned her home, she was unable to work for health reasons and her monthly income via an income protection plan was due to end seven years before she would have access to her State Pension.

However, in other cases the courts have made value judgments in justification of giving effect to the testator's wishes:

In the case of Clarke v Allen [2019], the testator had made a Will without knowledge later of extensive financial abuse by a daughter who was a beneficiary of the Will. The court considered that the factual context of the Will was relevant including the testator's mistaken belief that his daughter would not forcibly evict his wife and that he could not correct the position by executing a new Will due to a lack of capacity when the financial abuse of him and his wife became clear.

• The court took the view that the Will did not reflect the testator's wishes in the circumstances. The applicant was awarded most of the estate.
• The court however took a dim view of a claim presented by an adult daughter, in Wellesley v Wellesley & Others [2019], who was estranged from the deceased due to her behaviour and actions. The court upheld testamentary freedom given that she was also able to live within her means and there was no financial need for housing and resources.
• The case of Shapton v Seviour [2020] illustrated a clear imbalance between the defendant (the deceased's wife who had motor neurone disease and had given up work and was reliant on state benefits) and the claimant (the deceased's daughter who worked, had a comfortable lifestyle and had a self-inflicted credit card bill) along with the modest size of the estate. The court dismissed the claim describing the claimant's case as "absolutely hopeless" and one that "never stood a reasonable prospect of success".

Conclusion

The wishes of the testator are not insurmountable. They are but one factor to weigh under section 3(1)(g) of the Act as part of the overall exercise of reaching a value judgment. The facts of some cases have persuaded the courts to follow the testator's wishes, but in many others, the court has been willing to make an award and in doing so to depart from the wishes of the testator where the facts underpin the courts value judgment that it should.

For more information contact Lucy Scurfield in our Contesting a Will department via email or phone on 01772 220 152. Alternatively send any question through to Forbes Solicitors via our online Contact Form.

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