Estrangement, Testamentary Intention, & Family Provision in the UK

Melita Jackson died in 2004 aged 70. She had been widowed in 1961 whilst pregnant with her daughter Heather. In 1978 when Heather was 17 she left home to live with her now husband, with whom she has five children. Melita did not approve of Heather’s boyfriend leading to an estrangement for the majority of the 26 years preceding Melita’s death in 2004.

Since 1978 Heather lived independently of her mother in straitened financial circumstances. Heather and her family received a net annual income of around £20,000 which consisted mainly of government benefits.

In her last Will of 2002, (“the Will”) Melita left the majority of her estate to a number of charities, and nothing for Heather. Instructing her executors to defend any claim brought by Heather on the estate.

The Will reflected Melita’s testamentary intention as expressed in previous Wills as early as 1984. Heather had been aware of this decision for many years and didn’t expect any benefit from Melita’s estate.

Heather brought a claim under the Inheritance (Provision for Family and Dependants) Act (“the Act”) against Melita’s estate for reasonable financial provision.

An award under the Act should reflect the individual circumstances of each case, by reference to the following factors:

  • The financial needs and resources of everyone involved.
  • What responsibilities and obligations the deceased had towards the applicant and to anyone else with a claim on the estate.
  • The size of the estate.
  • Whether anyone involved is disabled.
  • Any other matter the court thinks is relevant, for example, the conduct of any of the people involved.

In August the District Court found that the Will did not make reasonable financial provision for Heather and awarded her £50,000.

The Charities challenged the finding that there was any lack of reasonable provision. Heather appealed believing that the amount awarded was insufficient.

Both the appeal and cross-appeal were heard in October 2009, the Court of Appeal found for the charities on the grounds the District Court Judge had made errors of law and had not properly balanced the criteria for provision set out in the Act. Heather’s appeal was dismissed leaving her with nothing.

In 2011 the England & Wales Court of Appeal restored Heather’s £50,000 award.  Heather further argued that this amount would reduce her means-tested government benefits. The Court of Appeal awarded £143,000 to enable Heather to cover the purchase of her housing association house (plus reasonable costs) and structured payments to a maximum of £20,000 allowing her to retain her government benefits.

The charities appealed and on 15 March 2017, the Supreme Court unanimously allowed the appeal finding that the Act provides that adult children can bring a claim for reasonable provision, not to achieve a higher standard of living. The definition of reasonable provision will be

‘coloured by the nature of the relationship between mother and daughter.’

The Court affirmed the original decision to award £50,000 as the failure by Melita to make reasonable financial provision for Heather in her Will was due to their long period of estrangement.

Importantly the Supreme Court felt that the Court of Appeal had put too little weight on Melita’s testamentary freedom – a testator’s wishes contained within a Will should be respected.

In considering a claim under the Act a Court should not simply weigh-up the resources of the claimant and of the beneficiaries: instead, the exercise of considering whether reasonable provision has been made for the claimant should be with the testator’s wishes firmly in mind.





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