The law surrounding provision for adult children in the context of the Inheritance (Provision for Family and Dependants) Act 1975 has been somewhat in turmoil in recent years following the much publicised Ilott case, and a spate of other claims. Practitioners do, sensibly, approach this area of law with caution.
Historically, adult children have struggled to bring a claim under the Act as the law respects the principle of testamentary freedom and does not oblige a parent to make provision for a child as in some forced heirship regimes. This very much remains the position where adult children are fit and healthy, financially independent and capable of earning a living. However, the Act is designed to allow a court to make provision for a claimant who is in financial need or there is some other reason which would make it unconscionable for provision not to be made for them.
Seeking provision from the estate
The recent case of Delaforte v Flood [2019] is an example of such a case, heard earlier this year. The claimant was seeking provision from the estate of her late grandmother who suffered with dementia as she had given up her career as a ballet dancer to care for her, providing 24-hour care at least 6 days a week. She took the state benefits that they received as a family and £100 per month. So she was remunerated but that remuneration fell far short of a market rate what she could have earned in her own profession. The claimant sought an award simply to support her for three years to allow her time to establish a business as a dance teacher. The claimant’s mother and uncle received the estate under the terms of the will. Her mother supported her claim but her uncle, who was well off personally, defended the claim on the basis she had been paid for what she had done, and they had a commercial arrangement. Ultimately, she was successful and received an award of £110,000 from an estate of £650,000. 'That is not a reward for her plainly meritorious conduct in caring devotedly for her grandmother,' said the judge. 'It simply represents reasonable financial provision for her maintenance.’
Wellesley v Wellesley & Ors
In contrast, in another case heard this year, the High Court has dismissed a claim by the estranged daughter of the 7th Earl Cowley against his £1.3M estate (Wellesley v Wellesley & Ors [2019]). She received £20,000 from his estate under the terms of his will with the remainder going into trust to provide for his fourth wife and various other family members including his son and step children. The court found that the £20,000 the daughter received was reasonable financial provision as she could otherwise live within her own means (which included the availability to her of state benefit provision). Lady Tara Wellesley had been estranged from her father for some 30 years; she sought to argue that this was due to her step-mother forcing her out of the family but the judge held it was in fact down to her disruptive behaviour and a lifestyle of ‘drink drugs and bohemia’. She also sought to advance human rights arguments which were simply dismissed and tried to argue that case law had established a precedent that 10% of the estate should pass to the children. This was also dismissed; each case turns on its own facts, there is no quantification of claims based on a percentage.
A useful reminder
This case serves as a useful reminder that, even in the context of a large estate, adult children will generally struggle if they are not financially in need because the overriding principle is that of testamentary freedom. The judge referred to a specific quote from Illot in this regard "It is not the case that once there is a qualified claimant and a demonstrated need for maintenance, the testator's wishes cease to be of any weight." (Ilott, para 47)
