Family Provision & the Deceased Estate in the UK

The Inheritance (Provision for Family & Dependants) Act 1975 (“the Act”) provides where the deceased has not made ‘reasonable financial provision’ under their will or on intestacy to a spouse or civil partner, ex-spouse or ex-civil partner, a child of, or someone treated as a child of the family by the deceased; a person who has lived with the deceased ‘as husband and wife’ for two years before the deceased’s death and a person who was financially dependent on the deceased. That person may bring a claim against the estate.

The Act limits ‘reasonable financial provision’ for adult children to what would be reasonable for their maintenance. The Court affirmed the definition provided in Ilott v The Blue Cross & Ors [2017] UKSC 17 that maintenance

… cannot extend to any or everything which it would be desirable for the claimant to have. It must import provision to meet the everyday expenses of living.” at [14]

The Test

The court will apply the following test:

(1) has there been a failure to make reasonable financial provision for the applicant, and if so,

(2) what order should be made.

Section 3 (1) of the Act sets out several factors that the court should consider when applying the two-stage test including ( but not limited to):

  • the financial resources and financial needs which the claimant has or is likely to have in future;
  • the financial resources and financial needs which any beneficiary of the estate has or is likely to have in future;
  • any obligations or responsibilities which the deceased had towards any claimant or beneficiary of the estate of the deceased;
  • the size and nature of the net estate of the deceased;
  • any physical or mental condition of any claimant or any beneficiary of the estate of the deceased; and
  • any other matter, including the conduct of the claimant or any other person.  

The Case

In Miles & Shearer v Shearer [2021] EWHC 1000 (Ch) a claim was brought against the estate of the former chief executive of the merchant bank Singer and Friedlander (“the Deceased”). Neither the Deceased’s adult daughters (”the claimant’s) from his first marriage nor their children benefitted under his Will. The claimants sought reasonable financial provision from their father’s estate under the Act. The defendant and principal beneficiary of the estate was the Deceased’s second wife.

In 2008, the Deceased made separate gifts of £177,000 and £185,000 to the claimants and clearly expressed to them that he would not provide them with any further financial assistance. Despite further requests, neither claimant received financial support from the Deceased after the gifts in 2008. In the last decade of his life, the Deceased and both claimants underwent periods of estrangement.

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.

The Decision

The Court was critical of the basis that one of the claimants’ calculated their alleged financial needs on her current living standard, and not the far less luxurious lifestyle that she had accepted when she was married. The judge concluded that her financial needs should be assessed on that lower standard of living.

Similarly, the claimant had sought costs relating to her youngest daughter who suffers from a disability as part of her financial needs. Under s3(1)(f) of the Act an applicant’s disabilities can be taken into account however this does not extend to any disability of the applicant’s dependant. However, the Court took the impact of the applicant’s caring responsibilities for her daughter when assessing her earning capacity.

The other claimant sought £244,000 to enable the conversion of an existing interest only mortgage on her property to a repayment mortgage and £105,000 to buy out her ex-husband’s 11% equity in the property, which she was due to pay in 2034. The court found that this obligation did not fall within the claimant’s financial needs that she ‘has or is likely to have in the foreseeable future’, which was the requirement under s.3 (1) (a). The Court held that it was unlikely that the sum would fall within the ‘maintenance’ requirement under the Act.

In dismissing the claims under the Act the Court found that after applying the test outlined above the Deceased’s Will did not fail to make a reasonable financial provision for the claimant’s maintenance in the circumstances; therefore the second question does not arise.

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