In recent years claims bought by adult children have seen varying levels of success (the door having been opened by the case of Illot v Mitson [2017]). However, the reality is that claims by adult children under the 1975 Act are difficult. In England and Wales, you have the right to leave your estate to whomever you chose, and if an individual elects not to leave their children anything at all in their will, the general expectation is that the deceased’s wishes would be largely upheld. Adult children living at home and those that were financially dependent on a deceased parent will always stand a much better chance of success under the Act than those that maintain themselves financially. Any claim will be fact sensitive in every case and will depend on the factors outlined in Section 3.
In the case Miles & Shearer v Shearer [2021] EWHC 1000 (Ch) a claim was brought against the estate of Anthony Shearer (“the Deceased”), the former chief executive of the merchant bank Singer and Friedlander. The claimants were the Deceased’s adult daughters from his first marriage. Neither of the claimants nor their children benefitted under the Deceased’s Will. The claimants sought reasonable financial provision from their father’s estate under the Inheritance (Provision for Family and Dependants) Act 1975 (“the 1975 Act”). The defendant was the Deceased’s second wife who was the principal beneficiary of the estate.
This case demonstrates the difficulties that adult children seeking to bring a claim under the 1975 Act may have, particularly when they are able to meet their maintenance needs from resources other than the deceased’s estate and where the deceased had no obligation or responsibility towards them. This is particularly the case where the claimants have been well provided for during the parent’s lifetime.
Claims under the 1975 Act
Where someone dies domiciled in England and Wales, certain categories of people can make an application for financial provision from the deceased person’s estate on the basis that their Will, and/or the devolution of their estate under the intestacy rules, does not make reasonable financial provision for the applicant. Under s.1 (1) (c), a child of the deceased is an eligible claimant.
The court will apply a two-stage test: (1) has there been a failure to make reasonable financial provision for the applicant; and if so, (2) what order should be made. Under s.1 (2) (b), ‘reasonable financial provision’ for adult children is limited to what would be reasonable for their maintenance. There is no statutory definition of ‘maintenance’ but Lord Hughes at paragraph 14 of Ilott v The Blue Cross & Ors [2017] UKSC 17 stated that maintenance, “… cannot extend to any or every thing which it would be desirable for the claimant to have. It must import provision to meet the everyday expenses of living.”
Section 3 (1) sets out a number of factors that the court should consider when applying the two-stage test.
S3 (1) (a) and (b) of the 1975 Act – the financial resources and needs of the claimants. The judge was critical of the claimants’ alleged financial needs. The court found that neither claimant could evidence a need for maintenance that could not be met if adjustments were made to their lifestyles.
The Deceased had no legal obligation to maintain the claimants after they reached 18 years old. To rely on s.3 (1) (d), the claimants needed to show that the Deceased had an obligation or responsibility for them at the time of his death. They failed to do so.
The judge ultimately concluded that the claimants failed to establish that reasonable financial provision had not been provided for them. Therefore, their claims under the 1975 Act were dismissed.
Where a testator decides to leave a child or children out of a Will, the case also underlines the wisdom of giving due care and attention to the reasoning behind doing so as well as the circumstances and actions of the testator during the latter stages of their lives.
The full case notes may be found at:
