The courts are often called upon to sanction treatment for patients whose ability to make...
The general rule in England and Wales is that a person making a Will, can leave what they choose to whomever they choose, which includes disinheriting their children if they wish.
There may often be valid reasons for doing so. However, although the wishes of the deceased may be to disinherit, a child of the deceased may still be able to bring a claim under the Inheritance (Provision for Family and Dependants) Act 1975 (“the Act”) if the Will is not thought to provide reasonable financial provision for them.
Under the 1975 Act, a child of the deceased, including an adult child, or any person (not being a child of the deceased) who was treated by the deceased as a child of the family, is able to bring a claim.
The court will apply the standard provision test for a child, this being “such financial provision as it would be reasonable in all the circumstances of the case for the applicant to receive for his/her maintenance”.
When considering what financial provision is reasonable, the court will take into account a number of factors, including the financial resources and needs that the applicant has or is likely to have in the foreseeable future; the size and nature of the net estate; any physical or mental disability of any applicant; the financial needs of the named beneficiaries and any other matter which in the circumstances of the case the court may consider relevant.
The court therefore has a wide discretion to make an award in favour of the disinherited child although not all of the factors will be applicable in all cases. If it is held that reasonable financial provision has not been made, the next question to consider is what provision should be awarded. Again, the court has a wide discretion and will make the most appropriate order in the circumstances, although most commonly a lump sum payment to be put in trust (or given directly if the child is an adult).
A 1975 Act claim needs to be brought within six months of the date of the grant of probate. In certain circumstances an application can be made outside this period if the estate has not been distributed but there would need to be good reason as to why the claim was not brought in time.
Following the most recent Supreme Court case of Illot v Mitson, it has become increasingly difficult for an adult child to bring a successful claim under the 1975 Act and the court has emphasised the importance of limiting awards to maintenance only, and not to meet the desirable needs of an adult child.
Read more about contentious probate and contested wills.