Excluding a child from a Will

Family and friends do not have a right to inherit our property.[1] However, sometimes the courts will find an obligation beyond a mere legal responsibility[2], or the ‘reasonable and well warranted expectation[s]’ family members have that the testator will leave property to them[3].

For adult children, this is not necessarily a moral claim.[4] However, it may be difficult for a child of working age with no disability to show that reasonable financial provision has not been made for them, unless there are some special circumstances such as a moral obligation.[5]

Adult children: unsuccessful claims

In three notable family provision cases, Re Dennis[6], Re Jennings[7] and Ames[8] the judges were less sympathetic to adult children. In Re Dennis, Judge Brown-Wilkinson asked of the claimant, ‘Why should anyone else make provision for you if you are capable of maintaining yourself?’ In Re Jennings, any proposition that the married son who lived in ‘comfortable circumstances’ should receive maintenance was firmly rejected.[9] Likewise in Ames[10], the judge found that any obligation the claimant’s father had towards his daughter had already been discharged during his lifetime. The judge noted that the daughter was ‘capable of working’ and concluded that ‘her lack of employment [was] a lifestyle choice.[11]

Regular support payments during the lifetime of the Deceased are no guarantee to a successful claim. Whilst such payments might support a claim that future maintenance was reasonably required, alternatively (per Ames[12]) they can alternatively demonstrate that support was given in circumstances in which there is no obligation to continue it after death.[13] Of note, the burden towards the daughter had been discharged during the father’s lifetime in Ames; by contrast in Re Jennings[14] the father failed to discharge his burden towards his son during his lifetime. However, Re Jennings was unsuccessful because the son had no need for maintenance.

Adult children: successful claims

A facet of successful claims is the presence of ‘some reason why it can be said that, in the circumstances, it is unreasonable that no or no greater provision was in fact made.’[15]

In Marks v Shafier[16] the claimant made a claim against the estate of a parent who abused them and this was held to be sufficient grounds.

A track record of reconciliation attempts on the part of a claimant could be the basis for a claim. In Ilott, the mother’s refusal to entertain her daughter’s attempts to reconcile was a factor. Similarly in Nahajec[17], the Court considered the estrangement between father and daughter which was a result of the father’s behaviour and her attempts to reconcile were rejected.[18] By contrast, in Wellesley v Wellesley[19], Re Garland[20]  and Wright v Waters[21] the courts found that long estrangements on the part of the claimants with prospect of reconciliation in prospect outweighed all of the other s3 factors.

Advising clients on excluding adult children

The above range of cases demonstrate that will-writing solicitors should not dismiss the possibility of an able bodied child successfully claiming under the Inheritance (Provision for Family and Dependants) Act 1975, since the Courts will consider all factors in s3 of the Act.[22] Although a consideration of the s3 factors may be useful in the context of the client’s circumstances and wishes, it will not produce definitive advice on the prospects of a future claim; particularly as there is no hard and fast rule as to what makes a child ‘deserving’.[23] Clients wanting to exclude a child should therefore be advised that a claim is a possibility, although not a certainty.

It perhaps goes without saying that using a solicitor to make a Will rather than using an online service or a DIY kit is another way to reduce the likelihood of a claim, because it demonstrates that the client has at least considered the possibility of leaving money to the excluded child, before deciding not to (as required by the Wills Act).

There are a range of other tactics that when used together, can help reduce the likelihood that a successful claim will be made. These include making a letter of wishes, leaving a small gift and inserting a no-contest clause.

Letters of wishes

Amongst other things, a letter of wishes is used to explain why the testator has excluded certain family members who might have expected to inherit, or included others who might not have. Under the original Act[24], s1(7) (now repealed) required the Court to have regard to any reasons the deceased gave for the dispositions they made (or did not make). The Courts now consider such factors to fall within the ‘other matters’ covered by s3(1)(g)[25] and sometimes s3(1)(d)’.[26]

A letter of wishes is not binding and cannot exclude the court’s jurisdiction under the Inheritance Act. However, the courts do take their content into account and they can be influential.27

In Ilott, the mother left a Letter of Wishes which implied that she had made attempts to reconcile with the daughter but that these had failed and her daughter was to blame. In fact, DJ Million found that whilst both parties had a part to play in the continued estrangement, the greater responsibility lied with the Deceased.

The facts of Nahajec v Fowle[28] are similar in some respects to Ilott. They involved an adult daughter who had been estranged for a substantial period of time. The Deceased left a note which clearly stated that the daughter should receive nothing from their estate. However, the note ‘raise[d] certain issues which detract[ed] from its significance and the extent to which it c[ould] be relied upon to controvert the claimant’s evidence.’[29]

This included ‘confusion on the part of the deceased as to how long it was since [the Deceased] had heard from his children’;[30] and the belief by the Deceased that his children were ‘sufficiently independent of means not to require any provision’.[31] In fact they were scraping by, sometimes resorting to payday loans.[32] The claimant was awarded 11% of the estate.

In another recent case (Thompson v Ragget[33]) involving cohabitees of 42 years, the letter of wishes included a number of inaccuracies. First, contrary to the letter, the claimant was able to live independently. Secondly, she was not financially comfortable as it stated. Consequently Court awarded her about 33% of the estate.

It would seem that the extent to which the Court is influenced by such letters depends on whether they were accurate and rational. Inaccuracies and spite may reduce the weight given to them or have a detrimental effect in the event of a claim. Clients should focus on positive reasons why other beneficiaries’ needs are being met, over personal and bitter reasoning for exclusions.[34]

It should be noted that a letters of wishes can also help courts determine a testator’s true intention. In a recent case[35], the testator wrote in a letter of wishes made with an earlier Will ‘I have always been very fair to all my children.’ This provided evidence that a later Will excluding some of her children was made as a result of undue influence. This demonstrates the value of leaving a letters of wishes in cases other than the exclusion of beneficiaries.

Finally, it is important to appreciate that an Inheritance Act claim can still succeed even where the Deceased’s wishes were perfectly reasonable.[36] Reasonableness is just one s3 factor.[37]

Letters of wishes: Lawyers’ potential liability

In light of the growing number of contested will cases, lawyers need to take care to minimise the risks of any future liability to disgruntled beneficiaries.

Letters of wishes need to be found upon the testator’s death, and so should be placed with the Will, with a note made on the file recording their storage. However, this raises the question as to whether the solicitor should check the letter.

If a Will or a codicil returned for storage after signing, even if sealed, the Law Society’s kite mark scheme (WIQS)[38] requires that the solicitor check the documents to ensure they have been executed properly per s9 of the Wills Act[39], and that the witnesses used are not beneficiaries (excluding them from benefiting)[40].

There is no parallel guidance for a letter of wishes. However, looking at SRA principles which are outcomes-focused, failure to properly advise a client that their letter of wishes could be viewed negatively in the event of a claim may breach Principles 5, 9 and 10.

Although there are no cases of a solicitor being held liable for failing to advise on the possible impact of a letter of wishes (as yet), lawyers should consider their approach carefully in light of the increasingly litigious attitude towards estates.

Small gifts

As noted above, a key theme with Inheritance Act claims is that, whilst the court has discretion over the amount awarded, a typical award for adult children is around 10%. In Ilott the award was £50,000 of a £486,000 estate. In Nahajec[41], the Court awarded £30,000, about 11% of the estate (his lordship noted the award to be within 1% of that of Ilott).[42]

Rather than excluding a child altogether, clients may wish to consider leaving a gift in the region of 10%. As noted, Inheritance Act claims are unpredictable and inherently risky. A claimant is at risk of being liable for their own and their opponent’s costs and expenses if they lose. If the claim is unlikely to achieve more than 10%, such a gift may deter claimants from risking a claim.

Forfeiture clauses

A no-contest clause, also known as a forfeiture clause, can be used to specify that if the beneficiary challenges the Will, they will forfeit their inheritance. Whilst in other jurisdictions these have been viewed negatively as restricting the individual’s right to access justice and assert their legal rights,[43] the English courts have not followed such an approach.[44] However, no contest clauses must be drafted carefully: when they do fail, it is often for uncertainty.[45]

Forfeiture clauses can be effective because the beneficiary must weigh the risk of making the challenge against the value of their legacy. The unpredictability of contested probate claims (both Inheritance Act and other types of challenges) makes it less likely that they will risk their guaranteed legacy in favour of a larger reward. However it should be borne in mind that if the beneficiary challenges the Will and is successful, they may get a greater share.

[1] Law Commission ‘Making a Will (Consultation Paper 231, 2017) para 1.13.[2] Goodchild v Goodchild [1997] 1 W.L.R. 1216.0

[3] [2013] EWHC 466 (Ch).

[4] [2017] UKSC 17 [20] (Lord Hughes).

[5] Re Hancock (1998) 2 FLR 346.

[6] [1981] All ER 140.

[7] Re Jennings, deceased [1994] Ch 286.

[8] Ames v Jones [2016] EW Misc B67 (CC).

[9] [1994] Ch 286 [298F].

[10] [2016] EW Misc B67 (CC).

[11] [2016] EW Misc B67 (CC) [51] (Mr Recorder Halpern QC).

[12] [2016] EW Misc B67 (CC).

[13] [2017] UKSC 17 [3] (Lord Hughes).

[14] [1994] Ch 286.

[15] In re Coventry (1980) Ch 461.

[16] Marks v Shafier [2001] All ER (D) 193 (Jul).

[17] [2017] EW Misc 11(CC)(18 July 2017).

[18] [2017] EW Misc 11(CC)(18 July 2017) [59] (HHJ Saffman).

[19] Wellesley v Wellesley & Ors [2019] EWHC 11 (Ch) [198]

[20] Re Garland (Deceased) [2007] EWHC 2 (Ch), [2007] 2 FLR 528

[21] Wright v Waters [2014] EWHC 3614 (Ch)

[22] Constance McDonnell, ‘Claims under the Inheritance (Provision for Family and Dependants) Act 1975 (Practical Law)

[23] [2017] UKSC 17 [66] (Lady Hale).

[24] Inheritance (Family Provision) Act 1938.

[25] [2017] UKSC 17 [60] (Lady Hale).

[26] [2017] UKSC 17 [17] (Lord Hughes).

[27] [1980] Ch 461 [488H].

[28] [2017] EW Misc 11(CC)(18 July 2017).

[29] [2017] EW Misc 11(CC)(18 July 2017) [65] (Judge Saffman).

[30] [2017] EW Misc 11(CC)(18 July 2017) [65] (Judge Saffman).

[31] [2017] EW Misc 11(CC)(18 July 2017) [66] (Judge Saffman).

[32] [2017] EW Misc 11(CC)(18 July 2017) [66] (Judge Saffman).

[33] [2018] EWHC 688 (Ch) (29 March 2018).

[34] Steve Evans, ‘Drafting matters post-Ilott’ (New Law Journal, 27 October 2017) 167 NLJ 7767 [15].

[35] Jonathan Ames, ‘Man fails to cut daughters out of £3m family estate’ (The Times, 13 March 2019)

[36] [1998] 2 FLR 346.

[37] [2017] UKSC 17 [20] (Lord Hughes) [17].

[38] Law Society Wills and Inheritance Protocol, Version 1.0 (3 July 2013), Para 14.6.

[39] Wills Act 1837, s 9.

[40] Wills Act 1837 s 15.

[41] [2017] EW Misc 11(CC)(18 July 2017).

[42] [2017] EW Misc 11(CC)(18 July 2017) [107] (Judge Saffman).

[43] In the Will of Gaynor [1960] VR 640; Bellinger v Fayers (2003) BCSC 563; Singer v United Israel Appeal Refugee Relief Fund [2013] NSWSC 1035; Ketcham v Walton (2012) BCSC 175.

[44] Charles v Barzey [2003] 1 WLR 437 (PC).

[45] Frank Hinks, ‘No contest clauses—putting recent decisions in perspective’ (Trusts & Trustees, 2015) 21 (10): 1087.

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