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Failure to provide reasonable financial provision under a Will


Increasingly we are seeing fragmented families with several relationships and children from different relationships over the course of people’s lives.  This can leave a real muddle after death.  A significant proportion of society refuses to address their mortality / fails to make adequate provision for loved ones. 

The High Court in the recent case of Wynford Hodge 2018 ordered an outright transfer of a property, plus money by way of an award to cover outgoings and maintenance which represented in the Court’s view reasonable financial provision for an elderly cohabitant. 

The Court’s power is under the Inheritance (Provision for Family and Dependents) Act 1975 (“Inheritance Act 1975”) which provides a framework for someone to make a claim against a deceased’s estate.  The claim can be made either against a Will which has arguably failed to make adequate provision for them or as a consequence of the intestacy rules (where there is no Will) failing to make reasonable financial provision for the applicant. 

Therefore in situations where the applicant who is not a spouse or civil partner of the deceased, the Inheritance Act 1975 provides for “such financial provision as it would be reasonable in all the circumstances of the case for the applicant to receive for his maintenance”.

In the Wynford Hodge case, prior to his death in 2017 the deceased had lived with the Applicant as man and wife for around 42 years and throughout this time she had been financially dependent on him.  She became physically dependent on him too after suffering a stroke in 2006 and then moved into a nursing home in 2015.  The deceased bought her a cottage which they were going to adapt to meet her needs but he died before she could move in. 

The deceased had made a series of Wills and in his last one he made no provision for the Applicant.  His estate was worth approximately £1.5 million and he left them to some tenants of one of his properties. 

The Applicant wanted to leave the nursing home and move into the cottage with her son and daughter-in-law who had agreed to care for her. 

The Court found that the deceased’s 2016 Will did not make adequate provision for the Applicant and decided that reasonable financial provision was needed for her maintenance and with the wide powers which the Court has, decided to transfer to the Applicant outright the adapted cottage together with a lump sum to cover the remaining costs of adapting the cottage and moving into it together with a lump sum to provide an income over an 11.6 year period. 

All such cases are very fact sensitive but in this particular case the Judge took note of the considerable disharmony between the beneficiaries under the 2016 Will who clearly wanted to protect and retain their legacy under the Will.  The Judge noted the clear evidence that this had been a long term relationship where there had been considerable financial and physical support of the Applicant by the Deceased and that it was appropriate that she should receive adequate provision. 

The Judge too was minded that there needed to be a “clean break” whereby there would be no further need for any communication between the beneficiaries under the Will and the Applicant and her family. 

This case again highlights the advice we always give our clients to get their house in order in good time, take professional advice and to provide very full instructions when making a new Will. 

The case also serves to once again remind parties that despite their wishes having been clearly recorded in their last Will and Testament, that it is not an absolute certainty that this will not be upset in the event of a challenge under the Inheritance Act 1975. 

 

Added: 03 May 2018 16:56


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