Inheritance Act Claims For Children
The Inheritance (Provision for Family and Dependents) Act 1975 allows certain classes of people to make a claim against the estate of a loved one where no/inadequate provision has been made for them under a will or the rules of intestacy.
In particular this includes:
- A child of the deceased
- Any person who was treated by the deceased as a child of the family
- Any person who immediately before the death of the deceased was being maintained, either wholly or partly, by the deceased
In assessing whether reasonable financial provision should be made under the 1975 Act, a court will have regard to the following matters:
a) the financial resources and financial needs which the applicant, any applicant, or any beneficiary has or is likely to have in the foreseeable future;
b) any obligations and responsibilities which the deceased had towards any applicant or any beneficiary;
c) the size and nature of the net estate of the deceased;
d) any physical or mental disability of any applicant or beneficiary;
e) 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.
For children claims, there are additional matters which the court must also weigh up in the exercise of their discretion:
- whether the deceased had assumed any responsibility for the applicant’s maintenance and, if so, to the extent to which and the basis upon which the deceased assumed that responsibility and to the length of time for which the deceased discharged that responsibility;
- whether in assuming and discharging that responsibility the deceased did so knowing that the applicant was not his own child;
- the liability of any other person to maintain the applicant
Parents are not obligated to leave anything to their children on their deaths, but this is usually harder to justify in the face of minor children given parents have a legal and moral responsibility towards them.
On the other hand, claims by adult children tend to be harder to succeed in as there is normally no expectation and entitlement to inheritance in a world which seeks to uphold testamentary freedom.
Clarification on how to deal with adult children claims was provided in the case of Ilott v Mitson & ors (2011)
It was held by the Court of Appeal that a claim by an adult child did not in fact require them to show in all cases (as a prerequisite) ‘moral obligation’ or ‘other special circumstance’. If an adult child “is in employment, with an earning capacity for the foreseeable future, it is unlikely he will succeed in his application without some special circumstance such as a moral obligation.”
“An adult child is, consequently, in no different position from any other applicant who has to prove his case. The court has to have regard to s 3(1)(a)–(g) and assess the relevance and the weight to be given to each factor in the list.”
Ms Ilott was awarded a sum of money from her mother’s estate but subsequent adult children have not been so successful including in the following cases:
- Ames v Jones and others (2016) – the court decided that her lifestyle choice of not working meant she should not receive anything from her father’s estate
- Miles v Shearer (2021) – the court did not award the two daughters anything from their father’s estate having found that substantial sums had already been paid to them several years before by their father (towards buying a property) and given the continued maintenance by their mother.
Adopted children can make a 1975 Act claim against the estates of their adoptive parents but not against the estates of their natural parents.
Step children can make a claim as someone who was treated by the deceased as a child of the family.
This is contrasted to the fact that if there is no will, then under the rules of intestacy, a step child (like an unmarried partner) has no legal right to inherit so the 1975 Act is usually their only recourse for remedy.
In Miles v Shearer (2021), the Court found that although it was unfortunate that the deceased’s grandchild was autistic, the physical or mental disability of any applicant did not extend to the disability of a dependent of an applicant. The Court had already taken into account the effect of the dependant’s autism on her mother’s earning capacity.
However, a grandchild could potentially make a claim in their own right as a child of the family (if they were raised by the grandparents) or a dependent of the deceased.
Children (whether minor or adult) should not presume that they have a right of inheritance by the mere fact of their relationship to the deceased. But their relationship does given them the potential to make an appropriate claim from the estate in the appropriate circumstances but each case is specific to its own individual facts. Courts have to consider claims by children in the same way as any other claim under the 1975 Act and weigh up all the relevant factors.
As with any inheritance act claim, the deceased should be properly advised and make informed choices about the consequences of excluding children from their will without potential good reason.