Claims By Adult Children Who Have Been Disinherited

 In Probate

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The law in England & Wales provides that everyone has testamentary freedom, that is to say they can leave their estate to whomever they choose within their Will. Many people with adult children believe that they do not need to provide for them in their Will or they may have become estranged from them over the years.

The Courts are seeing more and more claims by adult children who have been disinherited by a parent, but how does this align with the principle of testamentary freedom?

There will be clear circumstances where an adult child was still being financially supported by their parent and ought to be provided for in their Will. Likewise there will be circumstances where a claim is not justified, no matter how disappointing this may be.

The law changed in the later part of the 20th Century to bridge the gap for those who tend to lose out in these scenarios and permitted certain claimants, including adult children, to bring claims against a deceased’s estate. The Inheritance (Provision for Family and Dependants) Act 1975 (the “Act”) allows eligible claimants to:

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‘apply to the court… on the ground that the disposition of the deceased’s estate… is not such as to make reasonable financial provision for the applicant.’

Effectively, the question to the Court is (a) has this person been left with reasonable financial provision? and (b) if not, what is reasonable financial provision for that person? When considering these, there are a number of factors which the Court must take into account, including the Claimant’s and any other interested person’s financial needs and resources, their health and the size and nature of the estate.

What is ‘reasonable’ is not explicitly defined in the Act, however, the adult child is limited to claiming for maintenance and evidence has to be provided to support their claim that they are entitled to something. Proving that they had a terrible relationship with their parents or that they were never the favourite simply isn’t enough. Equally, there is no ‘right’ to claim for a standard of living equivalent to the one enjoyed in their childhood if they have not enjoyed similar family or professional success in adulthood.
The Courts are now attuned to claims by adult children seeking to right a perceived wrong and have recently commented that claims by adult children are limited to ‘what is needed…they cannot make a claim on the general basis that it was unfair that they did not receive any, or a larger slice of the estate’.

The law tries to right wrongs, but it has limits and is there to protect people who should have been left something by their parents to continue the financial support/maintenance given in their lifetime.

Claims of this nature must be approached carefully and sensitively.

As specialist lawyers we are trained to assess the legal merits of any claim and to have sensible discussions about what is possible dependent on the facts of the case. In our experience it is important to engage in early settlement discussions as such cases are often very well placed to be resolved at mediation. If you have a client that needs help now or you just want to run something past us, then contact us at 0330 175 9912 or and we’d be delighted to assist.

Or join our IDR Network for free, a resource created by IDR that offers tailored training, support and guidance for those dealing with family succession.

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