We have previously written about the principle of “testamentary freedom” – that is the right to dispose of your estate after you die as you wish.  Although an important principle, testamentary freedom is limited by the provisions of the Inheritance (Provision for Family and Dependants) Act 1975.  This legislation allows certain categories of people to apply to the court for financial provision if they believe that they have not been adequately catered for in the will of a deceased. This article looks at challenging a will.

Can anyone bring a challenge?

One of the most controversial categories of people who can make an application under this legislation is adult children. The question that is often asked is; what type of maintenance should be awarded in situations where an adult child has been deliberately disinherited by their parent after a long period of estrangement?
This was the central question in the case of Ilott v Mitson which we have previously addressed in articles.  In that case, the Supreme Court had to address the question of what financial provision should be given to a daughter who had been estranged from her mother for 26 years.  The Supreme Court decided that there are two stages to this question:

  1. Was the provision made by the claimant’s mother sufficient?
  2. If not, what level of maintenance should the court award?

In the end, the Supreme Court upheld the decision at first instance, deciding that the provision was not sufficient. It awarded the Claimant a capitalised sum of £50,000, representing a fair contribution towards her maintenance.
The decision in Ilott v Mitson had been thought by many to head off Inheritance Act claims by estranged adult children, but that seems to not have been the case in practice.  Interestingly enough, there has been a recent case in the County Court at Leeds in very similar circumstances;  this is the case of Nahajec v Fowle  [2017] EW Misc 11 (CC).

Nahajec v Fowle

Background

This case concerned a claim by a daughter against the estate of her recently deceased father.  The daughter had been estranged from her father from the age of 11, although there had been a short period of reconcilement between 2007 and 2009.  After 2009, the father cut himself off from his daughter once again due to a disagreement over her boyfriend.
It appears that throughout her life the daughter had made attempts to reconcile with her father but (with the exception of the short period between 2007 and 2009) none of these attempts had been successful.  It was clear from the evidence that the attempts at reconciliation had largely failed as a result of the father. The judge described the father as a man who found it hard to forgive those who disagreed with him.  Shortly before he died in 2015 the deceased had written a will expressly excluding his daughter and her two brothers from inheritance.  He had also written a letter of wishes to his executor explaining why he was seeking to disinherit his children.

At court

Considering the case, His Honor Judge Saffman noted that he was bound to follow the guidance of the Supreme Court in the case of Ilott v Mitson.
He firstly considered whether the provision for the daughter in her father’s will had been sufficient.  He examined the relationship between the daughter and the father and noted that she had made consistent attempts at reconciliation which were always refused by the father.  Quite often there were no reasonable grounds for the father failing to reconcile with his daughter.
The Judge also considered the claimant’s background; she was making ends meet, but suffered from considerable debts that were holding back her ability to progress.  She had a stated career goal of becoming a qualified veterinary nurse.  The judge accepted that had the relationship between the claimant and deceased been better, it was likely that the deceased would have assisted the claimant in achieving her aim of becoming a veterinary nurse.

What was the judge’s conclusion?

For the above reasons, the judge found that provision for the daughter in the father’s will was not sufficient.  The judge then considered the level of maintenance that he should award the daughter.  With the daughter’s career aspirations mind, the judge awarded her a sum of £30,000. He stated that this was a capitalised sum for the maintenance that the deceased might have provided her to allow her to qualify as a veterinary nurse.
Although as a decision of a county court this case is not binding precedent, it is still a useful indication of how the Supreme Court’s judgment in Ilott v Mitson is being applied on a practical level.  It is clear that the daughter’s repeated attempts to reconcile with her father were taken into account by the judge.  Without these attempts at reconciliation the judge may not have found in favour of the daughter.
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challenging a will