Challenging Wills - Reasonable Provision / Maintenance | Curtis Parkinson

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Challenging Wills – Reasonable Provision / Maintenance

Challenging Wills

Challenging wills and contentious probate is a growing area. Recently an estranged daughter successfully contested her late mother’s Will for lack of maintenance provision against three charities. I will now provide my opinion on the case and how the mother could have ensured her testamentary wishes were respected.  This article will be in two parts: (1) The Challenge and (2) How to mitigate the Challenge.

Part One – The Challenge

The facts:

  1. The appellant was the only daughter of her parents. Her father died shortly before she was born and she was brought up by her mother. At 17, she left home to live with her partner whom she subsequently married and had 5 children with. She had limited means with her husband, no expectation of this improving, lived mainly on benefits and rented her property from the council.
  2. They were estranged, tried to reconcile over the years but never succeeded. The court held that the mother acted in an unreasonable, capricious and harsh way to the daughter but that the daughter was also responsible for the failure in the attempts to reconcile.
  3. The mother’s net estate on death was £486K – the daughter essentially had nothing and had current and future financial needs

The Will:

  1. The mother left her entire estate to 3 charities (Blue Cross, RSPB and RSPCA ‘the Charities’), other than £5K to the BBC Benevolent Fund. She specifically excluded the daughter and instructed the executors to resist all attempts by her daughter to challenge the Will

The Result:

  1. The daughter applied to court tor and ‘award for maintenance pursuant to the Inheritance (Provision for Family and Dependants) Act 1975 (‘the Act’) … which relieves her everyday living expenses without affecting her state benefits’
  2. The mother had no connection to the Charities during her lifetime and executed the Will purely to exclude her daughter, there was no obligation or responsibility to them
  3. The daughter succeeded in her claim, on the basis of; her current and future financial needs for herself and family, the size of the estate and the circumstances/history of the case
  4. The Charities sought the claim to be limited to a small lump sum to provide an income for the daughter. The daughter claimed various amounts, which exceeded the value of the estate!
  5. The courts ruled that she should have a lump sum of around £146K to purchase her council property under the Right to Buy Scheme and a lump sum of £20K to provide an income and so as not to affect her benefits. The award for the purchase of the property would enable the daughter to release equity in future years for an income in retirement.

Conclusion:

Although we have freedom of testamentary disposition, we do have to reasonably consider those that may have a claim on our bounty. In light of the size and nature of your estate, you must at least consider their needs, whether now or in the future, and then come to a reasonable decision in your Will.

The decision in the above case was in respect of a child and limited to a claim for ‘maintenance’ , claims by spouses are not so limited. Even so, it equated to around one third of the estate.

The outcome could well have been different if the mother had actually had a longstanding connection with the charities and not made the will out of her capricious nature, or if the beneficiaries had been other children of the deceased with their own needs.

In the next article, I will set out how the mother could have done things differently and achieved the result that she desired.

Please note that all views, comments or opinions expressed are for information only and do not constitute and should not be interpreted as being comprehensive or as giving legal advice. No one should seek to rely or act upon, or refrain from acting upon, the views, comments or opinions expressed herein without first obtaining specialist, professional or independent advice. While every effort has been made to ensure accuracy, Curtis Parkinson cannot be held liable for any errors, omissions or inaccuracies.

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