In a recent County Court case, that was reminiscent of the Supreme Court case of Ilott v Mitson
(see our article here
), a daughter who had had little or no contact with her father for several years preceding his death was nevertheless awarded £30,000 on her claim against his estate under the Inheritance (Provision for Family and Dependants) Act 1975 (Nahajec v Fowle 2017 EW Misc 11 CC).
The claimant was one of three children of the deceased. She was the only child of the deceased’s second marriage, but had two half-brothers from the deceased’s first marriage. £22,000 had already been paid to one of her half-brothers on his 1975 Act claim. The net value of the estate at the time of death was £265,710. The deceased’s Will left the entirety of his estate to a close friend, who had helped to look after the deceased when he became ill. The Will was accompanied by a letter of wishes which stated that the deceased had not seen or heard from any of his children for 18 years. The deceased also stated that he believed that “all of my children are of independent means...and are, to my knowledge, sufficiently independent of means not to require any provision from me
”. The letter of wishes concluded that the deceased did not feel it was necessary or appropriate to make provision for his children in his Will.
Following her mother’s separation from the deceased in about 1996 there had been no relationship between the claimant and the deceased until about 2007. The deceased failed to answer letters the claimant had sent to him as a child and made no communication with her. The claimant contended that she made contact with the deceased in 2007 and that their relationship was rekindled until about 2009, when contact ceased again due to the deceased’s disapproval of the claimant’s new boyfriend. The claimant alleged that from 2009 she had tried to re-establish the relationship, but had been rejected by the deceased and that, ultimately, the absence of a relationship between them was entirely the choice of the deceased.
The claimant was in debt and had limited income from two jobs, as a sales-assistant and in a veterinary practice. She wished to train as a veterinary nurse and had been working additional hours for free at the veterinary practice in order to gain experience. The claimant brought a claim under the 1975 Act for reasonable financial provision, which for children of the deceased is defined as what would be reasonable in all of the circumstances for the applicant to receive for his maintenance. In determining a claim, the judge must consider and weigh in the balance all of the factors in section 3 of the 1975 Act (including, but not limited to, the financial resources of the claimant and the other beneficiaries now and in the future, the size and nature of the estate, any disability of the claimant and any other matter, including the conduct of the parties). In reaching his judgment HHJ Saffman made reference to Ilott v Mitson,
which was factually similar to the present case in that it involved a period of estrangement between the deceased and the claimant. The judge recalled Lord Hughes’ comments in Ilott
that although it was not necessary for an adult child to show a moral claim upon the estate of the deceased, it would be difficult for a financially independent adult child to be successful in such a claim without showing some other special circumstance, such as a moral obligation, that would warrant an award under the 1975 Act.
The judge was impressed by the claimant’s evidence at trial and believed her account of the circumstances of her relationship with her father, which was supported by evidence from her half-brother. The judge categorised the claimant, not as a “prodigal daughter who has only reappeared when there is the possibility of some money to be had
” but rather “a daughter who has very much regretted the absence of a relationship with her father
” and had made attempts to rekindle the relationship. The judge gave limited weight to the letter of wishes, noting that whilst it was an important factor to consider, the letter was premised on the mistaken belief that the deceased’s children were sufficiently financially independent not to require any provision under his Will. To the contrary, the judge concluded that the claimant was leading “a rather frugal existence”
and only making ends meet with the help of expensive payday loans (although, on her own admission, the claimant conceded that she could cope financially going forward, she would not be able to take time out to complete a veterinary nurse qualification). Furthermore, the size of the estate was such as to justify provision for the claimant, even taking into account the financial needs of the defendant and the half-brothers.
The judge concluded that the Will failed to make reasonable financial provision and that an appropriate award was £30,000 (being 11.3% of the net estate), against the claimant’s claim of approximately £70,000. In Ilott
the award given to the estranged daughter in that case was 10.3% of the net estate. The award was based on the judge’s best estimate of the capitalised cost of maintenance for a period of time to allow the claimant to undertake a course to provide her with a veterinary nurse qualification.
The case shows that post Ilott
, it is still possible for adult child claims under the 1975 Act claim to be successful, where they can show special circumstances that warrant an award. In the case of estranged adult children, it will help if they can show a history of attempts to reconcile. It further highlights, that whilst a letter of wishes will be an important factor for consideration, it will not necessarily be the determining factor. Parents who do not wish to leave provision for their children, should take legal advice when preparing their Will on mitigating steps to help prevent 1975 Act cases arising.
For more information please contact Eleanor Rutherford in our Contentious Trusts & Probate team on 01604 463340 or click here
to email Eleanor.