J & anr v S & ors [2021] WTLR 569

WTLR Issue: Summer 2021 #183

In the matter of: THE ESTATE OF R (DECEASED) AND IN THE MATTER OF THE INHERITANCE (PROVISION FOR FAMILY AND DEPENDANTS) ACT 1975

1. J

2. H (a child, through his litigation friend and mother N)

V

1. S (as executrix and beneficiary of the estate of R deceased)

2. M (as beneficiary of the estate of R deceased)

3. L (as beneficiary of the estate of R deceased)

Analysis

The claimants, being the children of the deceased, brought a claim for provision under the Inheritance (Provision for Family and Dependants) Act 1975. The deceased, their father, had been diagnosed with an incurable lung disease in 2004. The claimants’ parents had divorced in 2012. Their mother remarried shortly thereafter and relocated with the claimants to Scotland. The father had maintained weekly telephone contact with the claimants for a short period, but had paid no maintenance or child support, with the mother and her new husband paying for the claimants’ private education. The father died in October 2018. By his will, the father’s net estate of approximately £500,000 was left to his parents and his partner of seven years. The father recorded that he did not wish the claimants to benefit due to a lack of contact with them for over three years. At the date of trial, the elder claimant was in tertiary education in Scotland and the younger claimant (appearing by his mother as his litigation friend) was in secondary education, but proposed to undertake tertiary education in England.

Held:

  1. (1) The will failed to make reasonable financial provision for the claimants. As children of the deceased under s1(1)(c), it was not appropriate for the court to consider whether the father had maintained them during his lifetime. Beneficiaries (in this case being the parents and partner of the deceased) faced with an application by a child of the deceased should not generally rely on the lack of child support or maintenance from a step-parent to defeat a claim. Lack of contact and the assumption of responsibility by another person could be relevant to the value of a claim, but only in exceptional circumstances would the obligation to maintain be severed completely. A clean break was not generally applicable in respect of child maintenance (paras 78-79).
  2. (2) The court would guard against claims being advanced on a child’s behalf by a surviving parent. The fact that the mother had been the parent who maintained the claimants since 2012 did not mean that on the father’s death this obligation would shift to his estate. The financial burden of the claimants’ education was heavy and would be reflected in the award. It was not appropriate to order a backdated maintenance award in this case (paras 81-86).
  3. (3) The court ordered the deceased’s estate to pay 50% of the claimants’ living expenses from the date of issue to their 21st birthdays, respectively. The cost of the elder claimant’s final year of school would be paid by the estate. The estate would pay 100% of the younger claimant’s fees as a fifth form pupil and 80% of his future boarding school fees during sixth form. The estate would pay 50% of the cost of a reliable second-hand car for both claimants respectively. No sum was awarded for the maintenance costs of studying at a Scottish university as no tuition fees were payable. If the younger claimant studied at an English university, it was reasonable to expect him to take out a student loan. Provision was made for 50% of one year of post-university housing costs and one year’s private counselling (paras 94-113).
JUDGMENT MASTER TEVERSON: [1] This is a claim under the Inheritance (Provision for Family and Dependants) Act 1975 (‘the 1975 Act‘). As the claimants were both children under the age of 18 when the claim was issued, and one claimant is still at school, I consider it appropriate to anonymise the names of the parties …
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Counsel Details

Elaine Palser (Outer Temple Chambers, The Outer Temple, 222 Strand, London WC2R 1BA, tel 020 7353 6381, e-mail clerks@outertemple.com) instructed by Tees Solicitors (Tees House, 95 London Road, Bishop’s Stortford, Hertfordshire CM23 3GW, tel 0808 291 3103) for the claimants.

Mark Baxter (5 Stone Buildings, Lincoln’s Inn, London WC2A 3XT, tel 020 7242 6201, e-mail clerks@5sblaw.com) instructed by Spire Solicitors LLP (Holland Court, The Close, Norwich, Norfolk NR1 4DY, tel 01603 677077, e-mail info@spiresolicitors.co.uk) for the defendants.

Cases Referenced

Legislation Referenced

  • Children Act 1989, ss2, 3, 8
  • Children and Young Persons Act 1933, s39
  • Inheritance (Provision for Family and Dependants) Act 1975, ss1, 2, 3, 5