Adult Children & Inheritance Order Claims

November 11, 2016

Pursuant to the Inheritance (Provision for Family & Dependants) Northern Ireland Order 1979, Plaintiff adult children are given the statutory right to apply to the High Court for an award from the Estate of their parent on the basis that the Deceased failed to make “reasonable financial provision” for the Plaintiff.

In general terms, “the issue for the Court on an application under the 1979 Order is whether considered objectively reasonable financial provision was made for the Applicant, and if not, what reasonable financial provision should be made”, Bingham v Guidera [2000] NICh 58.

Equally, in respect of an application under the 1979 Order, “the Court has no carte blanche to alter the Deceased’s dispositions, or those which the State made with his Estate to accord with whatever the Court itself might have thought would be sensible if it had been in the Deceased’s position” Re Coventry [1980] Ch 461 at 475 per Oliver J.

If an adult child makes such an application, the Court must consider the following factors:-

  1. The financial needs and resources of the Plaintiff, including those likely in the foreseeable future;
  2. The financial needs and resources of any other beneficiary under the Estate;
  3. The obligations and responsibilities which the Deceased had towards the Plaintiff;
  4. The size and nature of the Estate and the effect any Court Order might have on any business undertaking;
  5. Physical or mental disorder of any Plaintiff or beneficiary;
  6. Any other matter (including conduct) which, in the circumstances, the Court considers relevant;

Specific matters which the Court must consider in relation to a child of the Deceased are:-

  1. The manner in which the Plaintiff was being, or in which they might be expected to be educated or trained;
  2. Whether the Deceased assumed any responsibility for the Plaintiff’s maintenance and if so, the basis upon which the Deceased assumed that responsibility and the length of time that this responsibility was discharged;
  3. The liability of any other person to maintain the Plaintiff;

The legal profession, Charity Sector and indeed, society at large, awaits with interest of the decision of the Supreme Court in the case of Illott v Mitson which is due to be heard in December 2016. That case concerned an application under the equivalent English 1975 Inheritance Act by an adult child who had been estranged for many years from her mother. The Court of Appeal made a substantial award to the Plaintiff so as to facilitate the purchase of a property and to provide her with an income.

The late Mrs Melita Jackson died leaving an Estate of £486,000.00. She had been estranged from her only child, Heather for 26 years. Mrs Jackson made a Will which made no provision for her daughter, or her 5 grandchildren. Except for a £5,000.00 gift to the BBC Benevolent Fund, she bequeathed the entirety of her Estate to three Charities, each of which accepted that Mrs Jackson did not have a connection with them during her lifetime.

After an eight year legal saga, the Court of Appeal decided that reasonable financial provision should be made to Heather to assist with her everyday living expenses without affecting her means tested benefits. Ultimately, she was awarded £143,000.00 to buy her house, plus legal expenses and an option to require the Executors to pay her an additional sum, not exceeding £20,000.00, which could be paid in instalments to avoid any impact upon her benefits. In coming to this decision, the Court considered her dire financial circumstances and also took the view that the Charities had received a “windfall”.

In an even more recent case in October 2016, Ames v Jones [2016] EW Misc B 67(cc), the Central London County Court dismissed a claim for reasonable financial provision by a 41 year old daughter of the Deceased. The adult child claimed that she and her two teenage children were entirely dependent on her long term co-habitee as she did not have any employment. She therefore made a claim against her late father’s Estate under the English 1975 Act. In dismissing the claim, the Court seems to have relied heavily on factor 1 above. The Deceased’s Estate was worth approximately £700,000.00 and the Court did not consider that there was sufficient money to support both the adult child and the Deceased’s second wife, who inherited the entire estate under the Deceased’s Will. In addition to finding the adult child to be an unreliable witness, the Judge found that the Deceased’s second wife was both elderly and ill, whilst in contrast, the adult child was capable of working and her lack of employment was a “lifestyle choice”.

Hopefully, the Supreme Court decision in Illott v Mitson will clarify the law in this area and give greater certainty to both Testators and their families.

Please note:

The content of this article is for information purposes only and further advice should be sought from a professional legal advisor before any action is taken.

Please contact Cleaver Fulton Rankin on 028 9024 3141, or alternatively visit www.cfrlaw.co.uk