Pesky kids (and other relations) make sure your will clearly states what you want!
October 24, 2011 12:33 pm
Despite it being used as the basis for a healthy society, the model of a family with father mother and children was never universally adopted. However the fact that there was a model led lawmakers to use it to produce a structure for society that suited them. Thus the rules assumed that where a man did not make a Will, the law would provide for his wife and legitimate children. This meant that a so-called common law wife and her children could not expect to inherit.
Eventually the lawmakers realised that this produced unfair results and enacted provisions (now contained in the Inheritance (Provision for Family and Dependents) Act 1975) to give certain rights to a select group of people related or connected with the deceased.
Initially, claims under this Act were made by spouses former spouses and partners and on behalf of infant children. Recently, there have been several cases involving adult children who have submitted claims for provision to be made for them where the Will of the deceased parent does not (in their opinion) treat them fairly.
The main point to remember is that a claim by an adult child is only likely to succeed if the financial position of the child is measurably worse than that of the parent. So a rich adult child is unlikely to be successful One case involved a rich father who had given one of his children some money many years before his death. She suffered from a mental condition which made it difficult for her to work. For some reason her father decided she was a waster and they had not maintained a close relationship. When he died she was left nothing in his Will. She applied to the Court on the basis that the Will failed to make fair and reasonable financial provision for her. The Court agreed and said that the lifetime gift was of such a small value that it could not be treated as sufficient to satisfy her father’s duty to include her in his Will. The father’s estate was worth several million pounds.
As society changes to take account of its members’ behaviour it is important for us to be aware of the rights which the 1975 Act gives to people that we know or are related to. The onus is on the potential claimant not the Personal Representatives. There is a time limit for making a claim so if you think you may be entitled to make a claim, don’t delay.
As an example, your daughter may marry twice in her lifetime. Her first husband may bring to that marriage his children from his previous relationship. When she marries for the second time she will have three groups of children that she may refer to and accept as her children – the children she has given birth to, the step children from her first and her second marriage- and all of them may feel that she should provide for them in her Will. Your Will might need to be altered to make it clear that the definition ‘grandchildren’ are (or are not) to include step-grandchildren.
The law still recognises the importance of the model but it also tries to help others who in all fairness should not be left bereft.
John Riddett can be contacted at Blocks Solicitors
Telephone 01473 230033