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Will disputes –  can you deter future claims by disinherited children?

It is customary to advise clients not wishing to provide for their children in their will, to prepare a side letter detailing the reasons why not. This letter would then be relied on as evidence of the testator’s intentions should the will be challenged after they die.

However, the Supreme Court decision on Ilott v The Blue Cross and Ors and the more recent County Court case of Nahajec V Fowle seem to show a trend by the court to give the disgruntled child “something”rather than uphold the testator’s wishes of “nothing”in cases where there is a lack or financial resources or financial needs.

It is worth noting that both cases were brought under the Inheritance (Provision for Family and Dependants) Act 1975 which requires a consideration of the individual circumstances of the case (which in itself shows how complex claims can be) including the claimant’s financial situation. The Act specifies in section 3(1) the matters to which the court is to have regard in exercising its powers to make an order in favour of the claimant as follows:

(a) the financial resources and financial needs which the applicant has or is likely to have in the foreseeable future;

(b) the financial resources and financial needs which any other applicant for an order under section 2 of this Act has or is likely to have in the foreseeable future;

(c) the financial resources and financial needs which any beneficiary of the estate of the deceased has or is likely to have in the foreseeable future;

(d) any obligations and responsibilities which the deceased had toward any applicant for an order under the said section 2 or towards any beneficiary of the estate of the deceased;

(e) the size and nature of the net estate of the deceased;

(f) any physical or mental disability of any applicant for an order under the said section 2 and any beneficiary of the estate of the deceased;

(g) any other matter, including the conduct of the applicant and any other person, which in the circumstances of the case the court may consider relevant.

In the first case: Ilott v The Blue Cross and Ors, the claimant daughter was reliant on state benefits and the Supreme court upheld the decision to award her £50,000 out of her mother’s estate which was worth just under £500,000 (approx. 10%).

In a more recent county court case: Nahajec V Fowle, the claimant daughter was in paid employment (albeit limited hours) and was in considerable debt. She also aspired to qualify as a veterinary nurse. She was awarded £30,000 out of her late father’s estate, which was worth around £243,000 (approx.. 11.%).

In the light of these recent decisions, parents wishing to disinherit their children, should ensure they seek expert advice which will help deter an estranged child from contesting the will.  One of the options available could be a “tactical”legacy left to the child but which is subject to a forfeit should they contest the will.