In the UK, we have the intestacy rules which say what will happen to your estate if you die without  leaving a will.   There is a set order of priority in which people will inherit your estate.  The intestacy rules are complex but in brief:

1. If you die leaving a spouse/civil partner but no children, your spouse will inherit your entire estate;

2. If you die leaving children but no spouse/civil partner, your children will inherit your estate in equal shares;

3. If you die leaving a spouse/civil partner and children, your spouse/civil partner is entitled to your ‘personal chattels’ (movable property, but not money) and a statutory legacy which is currently £270,000, and the rest of your estate is then split 50% to your spouse/civil partner and 50% to your children in equal shares.

Things get a bit more complex if you do not leave a spouse/civil partner or any children, but it is generally accepted that children (if you have them) expect to inherit from their parents’ estates.  However, in the UK we also have ‘testamentary freedom’ meaning you can leave your estate to whomever you wish and there is no legal requirement to include your children, or even your spouse or civil partner, in your will.  Not all countries have this. Indeed, worldwide it is probably the exception rather than the norm.

Claims for reasonable provision

You can imagine how testamentary freedom can leave some people in a sticky situation.  Take, for example, the case of Kaur v Estate Of Karnail Singh in which Mrs Kaur helped her husband build his business over their long marriage and amass an estate worth almost £2 million – only to find that she and her daughters had been left nothing in Mr Singh’s will.  Fortunately, testamentary freedom is balanced by the Inheritance (Provision for Family and Dependants) Act 1975 (the “1975 Act”) which allows certain people the option to seek ‘reasonable provision’ from someone’s estate, which is exactly what Mrs Kaur did in the above case.

Under the 1975 Act there are two types of provision which can be sought:

1. For spouses or civil partners, it is provision as is reasonable in all the circumstances whether or not it is required for their maintenance; and

2. For anyone else (including children of the deceased), it is provision as is reasonably required for their maintenance.

In either case, in assessing what is reasonable, the court will take into account the size and nature of the estate, the needs of the applicant and the beneficiaries, and other matters including the conduct of the parties.

Claims by children of the deceased

For ‘maintenance cases’ i.e. anyone other than a spouse or civil partner, ‘maintenance’ is generally taken to mean the extent to which the applicant was maintained or funded by the deceased.  In some cases, this is easy to assess.  Minor children or those living at home with their parents rent free are likely to be entirely or mostly maintained by a parent.  In other cases, maintenance may be easy to establish e.g. if the deceased was giving regular gifts or paying certain outgoings, it is expected that provision should be made for that to continue.

So where does that leave adult children who were not financially dependent on their parents? Well, they may unfortunately be left with little remedy available to them.  As stated in the 2018 case of  Ilott v Mitson it is “not always enough” to establish a claim simply by being a child of the deceased.  There are several cases where the court has refused to award adult children a share in their parent’s estate, even where the child could show they were in need of the money.  This is particularly the case where children have been estranged from their parents.

However, there may be some cases where an adult, or even an estranged child, might be able to claim.  For example, if an adult child were disabled and in receipt of benefits, the court might consider that it is in the interests of public policy to award provision from the estate, rather than the applicant being reliant on the state. 

The court will always take into account the needs of any other beneficiary or applicant as well as the size of the estate in making any decision.  It is unlikely, for example, that the court would make an order which would leave a surviving spouse or civil partner homeless in favour of giving the estate to an estranged adult child.

Other claims

In addition to claims under the 1975 Act you might consider other claims which could be available.  For example if the deceased made clear promises that you would inherit and you acted on that to your detriment, you may be able to raise a claim in estoppel. 

Claims for estoppel are, simply put, claims to enforce a promise.  In order to bring a claim for estoppel you must be able to show that:

1. A promise was made to you; and

2. That you relied on that promise to your detriment.

This often comes up in the context of family businesses, and in particular farming businesses.  Often in such families a parent will say “work for me and one day this will all be yours” or something to that effect.  The child might then forgo further education and other, more lucrative, career options and often working for the family business for many years for little or no pay.  If then, on that parent’s death, the child discovered they were not inheriting the family business, the court would likely say this is unfair and amend the will to give the child what they were promised.

Another potential claim is to consider the validity of the will.  If your relationship with one of your parents was good, but the other (or perhaps a sibling) persuaded them not to include you, there may be a claim for undue influence. Alternatively, if, for example, your parent entirely forgot that you existed or was unable to understand or recall that you were being maintained by them, this may give rise to a suggestion that they did not have capacity to make their will.  Any will made by someone with capacity would not be valid.

If you have any issues dealing with an estate please do not hesitate to contact Kezia Brown by email or on 01494 893504.