Unsuccessful claims by an adult child under the Inheritance (Provision for Family & Independents) Act 1975

Ames v Jones & Ors [2016] EW Misc B67 (CC) (19 August 2016)

Danielle Ames has been unsuccessful in her claim for provision from the estate of her father.

Michael died with an estate worth £1.09 million. His entire estate was left to Danielle’s step mother Elaine

Danielle claimed that her father’s failure to make provision for her in his will was unreasonable. She claimed £300,000 and submitted that her father had said that the estate ‘…will all be yours one day’.

The case is a reflection of the tension which often exists between adult children from a first relationship and the surviving spouse/partner.

Under the Inheritance Act 1975 it has always been possible for adult children to claim that reasonable provision has not been made for them. In order to succeed in the claim, they need to demonstrate that the failure to make provision was unreasonable.

Their claim is assessed on the lower basis (spousal claims are assessed on a higher basis) of that which is reasonable for the adult to receive for their maintenance. The claim is assessed by reference to the Section 3 criteria, which include:

  • The financial circumstances and needs now and in the future of the claimant and the beneficiaries
  • The obligations and responsibilities which the deceased had towards any applicant or beneficiary
  • The size and nature of the net estate
  • Whether any other parties are suffering from physical or mental disability
  • Any other matter, including conduct which the Court may consider relevant

In addition, the Court will consider, the manner in which the child was being or might expect to be educated or trained

In the recent case of Ilott v. Mitson [2015] the Court of Appeal found that reasonable provision had not been made for the adult child. The case was brought by Heather Ilott, whose mother Melita Jackson left her substantial estate to several animal charities after her death in 2004. Mrs Ilott and Mrs Jackson had been estranged for 25 years and Mrs Ilott was aware that her mother had excluded her from her will. The court considered that reasonable provision had not been made and considered that reasonable provision was the transfer of a capital sum (of approximately 1/3 of the estate) to enable the Claimant to purchase her council house and retain a capital sum which would not impact upon her benefits. The key issues appeared to be the Claimant’s poor financial circumstances and the fact that the sums passing to the large charities were considered by the court a ‘windfall’.

All 75 Act claims are fact specific. In Ames the facts when applied to the s. 3 criteria have resulted in a different outcome.

The main issues highlighted in the judgment of Judge Halpern were:

  1. That Danielle had chosen to be unemployed as ‘…a lifestyle choice’.
  1. Danielle had ‘…no disability and is fit for work.  In contrast, Elaine is past working age and it is apparent she is not well’.
  1. That making provision for Danielle would eat into the estate left to Elaine who required the estate to meet her ‘…reasonable needs’. The major asset of the estate was the family home.
  1. That the Deceased had discharged any obligations he owed to Danielle during his lifetime and that she had ‘gilded the lilly’ regarding the expectation of post death support. He had set her up in a picture framing business during his lifetime which she had given up to have children. By contrast the estate needed to support the spouse.

Ames reflects a harsher approach to claims by adult children who are capable of work. Judge Halpern’s comments echo those of Judge Brown-Wilkinson’s comments in the case of Re Dennis who stated:

“Why should anyone else make provision for you if you are capable of maintaining yourself?”

It would have been interesting to see the court’s approach had there been more cash in the estate ‘to go around’. Arguably Danielle’s financial circumstances were not substantially different to those of Mrs Ilott. The main difference between the cases were the identity of the opponent (spouse/large charity) and the Judge’s assessment of Danielle’s ability to work.

The case reiterates the risk in all litigation as Danielle has now been ordered to pay Elaine’s cost of £85,000.

The case will be of interest to practitioners advising upon the risks of claims between family members. It re-emphases the importance of those making wills ensuring their wishes are fully set out and giving clear consideration to the risks of claims after their death.

It will be interesting to see the approach the Supreme Court takes at the hearing of the appeal of Illott on 12 December 2016.

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