“Testamentary freedom” is a fundamental principle of English and Welsh Law. This means that the starting point is that a testator (someone making a will) can leave their estate to whoever they wish; they are not under any obligation to leave a proportion of their estate to their children or other family members (as is the case in some other countries).
You can therefore cut your children completely out of your Will. However, the Inheritance (Provision for Family and Dependants) Act 1975 (“the 1975 Act”) does give certain categories of people, including your children (even if they are grown up adults), the right to bring a claim for financial provision from your estate in certain circumstances.
If a child makes a claim against their parent’s estate under the 1975 Act, their claim is for “reasonable financial provision”. Reasonable financial provision is limited to funds needed for their maintenance, which is generally taken to be their day to day living expenses. A child could argue that they are in need of maintenance because, for example, their outgoings exceed their income, they aren’t adequately housed, or they have debts to repay.
The court will look at a number of factors to determine what reasonable financial provision is in each case, including the financial needs and resources of the applicant, the financial needs and resources of the beneficiaries under the will or intestacy rules (where there is no will) and the size of the estate.
Whilst he court will often place an emphasis on the financial factors , it will also consider “the conduct of the applicant or any other person”. The recent case of McQuaid v McQuaid is a useful example of the court considering the conduct of the applicant.
The case was decided by the High Court of Justice in Northern Ireland. It was brought under the Northern Irish equivalent of the 1975 Act, where the same principles apply as in England and Wales. The applicant, Conrad McQuaid, brought a claim for financial provision from the estate of his late father, Terence McQuaid. Terence made a will which left his entire estate to his wife (and Conrad’s mother), Briege.
Conrad tried to establish that he had a “moral claim” against the estate by reason of his relationship with his father and the fact that he had worked alongside his father in his teenage years.
The Court was very critical of Conrad’s conduct, saying that he had made “outrageous” allegations against his family (who he had accused of being involved in a criminal conspiracy), and highlighting how he had threatened legal action over a headstone being erected on his father’s grave. The Court concluded that Conrad’s claim was brought not only for financial gain, but also as a way of trying to harm his mother.
Unsurprisingly, Conrad’s claim was dismissed. The Court specifically referenced Conrad’s poor conduct as being one of the reasons for its decision, stating “the court is entitled to take into account the conduct of an applicant… in determining whether there has been reasonable financial provision. The plaintiff’s conduct has been… quite appalling. His relationship with his father was non-existent for years and it cannot be that any moral claim therefore exists.”
This case is a useful reminder that the Court can look at the applicant’s conduct, and their relationship with the Deceased, when deciding whether reasonable financial provision has been made for them. Estrangement is a common theme in these claims and whilst it can make it more difficult to succeed, it is only one of the factors to consider and will certainly not on its own prevent a claim being successful.
If you would like to discuss any of the issues raised in this blog, then please get in touch with a member of our private wealth disputes team.