4th May 2017
I have been left out of my estranged mother’s will and I don’t think it’s fair. Is there anything I can do?
English law recognises the freedom of individuals to dispose of their assets by will after death in whatever manner they wish.
There are default succession rules in the event of intestacy, however, since 1938, and now under the Inheritance (Provision for Family and Dependents) Act 1975, the court has the power in defined circumstances to modify either a will or the intestacy rules if satisfied that they do not make reasonable financial provision for a limited class of persons.
The court must identify a will or the intestacy rules apply unless an application is made to, and acceded to by, the court and a specific order or provision made; only a limited class of persons may make such an application – spouses and partners (civil or de facto), former spouses and partners, children, and those who were actually being maintained by the deceased at the time of death; all but spouses and civil partners who were in that relationship at (and for two years up to) the time of death can claim only what is needed for their maintenance. Thus there is no claim to the effect that ‘what I received was unfair’; and the test of maintenance (or rather, reasonable financial provision) is objective and will vary from case to case.
The court is empowered to make adjustments which may include one or more periodical payments, a lump sum payment, the transfer of property, creating an interest in property or the acquisition of property.
The concept of reasonable financial provision is central to whether or not a court should depart from the terms of a will or the intestacy rules. Current spouses or civil partners are entitled to reasonable financial provision whether or not required for maintenance. All other applicants are limited to such provision as would be reasonable by way of maintenance, however the concept of maintenance is broad.
For a court to make an order, it must assess that the will, or the intestacy regime, does not make reasonable financial provision for the applicant. This is assessed against what would be reasonable for the applicant to receive either for maintenance or without that limitation depending on the class of the applicant.
The court generally has no carte blanch to reform the deceased’s dispositions or those which statute makes of his or her estate to accord with what the court itself might have thought would be sensible if it had been in the deceased’s position.
The 1975 Act plainly requires a broad-brush approach from the judge to assess very variable personal and family circumstances. The time at which the court has to assess whether reasonable financial provision has been made, and what it should be, is at the date of the hearing of any claim.
The process requires a single assessment by the judge of what reasonable financial provision should be made in all the circumstances of the case. The above factors are all to be considered so far as they are relevant, and in light of them a single assessment of reasonable financial provision is to be made.