Adult claims against a parent’s estate
August 25, 2011 12:36 pm
This article takes a brief look at the possibility of an adult child, who may have been excluded from their parent’s Will, making a claim against their parent’s estate and the steps that can be taken to help prevent the success of any such claim.
In England and Wales we are not forced by law to leave a certain percentage of our estate to dependants. There are, however, rules set out in the Inheritance (Provision for Family and Dependants) Act 1975 (‘the Act’) which allow children of the deceased to make a claim against the estate of their deceased parent. These rules apply whether or not there is a Will in place.
The traditional view has been that it is normally difficult for an adult child, who was not financially dependent upon their deceased parent, to succeed in a claim under the Act. This view however, has been challenged following a case earlier this year. The case was called Ilott v Mitson and involved a claim made by the deceased’s only child, who was an adult and estranged from the deceased at the date of the deceased’s death. The court decided that provision should be made for the daughter.
This doesn’t mean that all claims made by estranged, independent children will be successful but it does mean that any such potential claims must be given serious consideration at the time of deciding the distribution of one’s estate.
What, then, can you do if you want to exclude an adult child from inheriting from your estate? Although you cannot exclude the provisions of the Act, the first step to take is to make a Will. Without one, the rules that govern how estates are divided up in these circumstances may mean that the child will be entitled to a share of the estate as of right.
Depending upon the particular circumstances, it may be advisable to make a small provision in the Will or to make a gift conditional upon the recipient not making a claim under the Act. This could deter the potential claimant from pursuing a claim under the Act.
You should explain in the Will, or in a separate note, why the particular person has been excluded. Although the court is not bound to follow your wishes, your reasons can be taken into account. You should also ensure that your lawyer makes detailed file notes of your reasons.
Most importantly, you must explain the situation to your lawyer. He or she can then consider the merits of any potential claim and then give advice on any steps that could be taken to try and mitigate the risk of any claim being successful.
Nicola Weldon is a solicitor in the Private Client Team at Blocks Solicitors and is a member of The Society of Trust and Estate Practitioners. She can be contacted on 01394 283241 or emailed at email@example.com.
The above is only a brief guide on the options available. Advice should be sought from a professional before taking any action.