A sense of entitlement does not equate to “need” in adult children 1975 Act claims

In the absence of forced heirship in England & Wales, the Inheritance (Provision for Family & Dependants) Act 1975 (“the 1975 Act”) is often referred to as the greatest restriction on testamentary freedom in this country.

It enables various categories of applicant – to include children of a deceased – to bring a claim under the 1975 Act if they consider that the deceased’s last will or the rules of intestacy do not make reasonable financial provision for them.That is not to say, however, that all claims under the 1975 Act will necessarily succeed, even if no provision at all has been made for a child of the deceased in his/her will. That was the outcome in the very recent decision of Miles and another v Shearer (as executrix and beneficiary of the estate of Anthony Presley Shearer) [2021] EWHC 1000 (Ch).

The claimants were the adult daughters of the deceased, who died aged 68 in October 2017 of a brain tumour. He was the former chief executive of merchant bank Singer and Friedlander. Following his death, almost all of his estate – estimated at about £2M – was left to his second wife, Pamela, and nothing to his two daughters from his first marriage, Juliet (aged 40) and Lauretta (aged 38).Juliet and Lauretta made a claim under the 1975 Act for maintenance to replace the “generous financial provision” they expected from him while alive. But, in dismissing the claim after considering each daughter’s own financial position and their sense of entitlement to inherit from their father’s estate, the judge held that:“I do not consider that either claimant can demonstrate needs for maintenance which they cannot meet, if necessary by adjustment to their lifestyle”.That finding was fatal to their claim given that s.3(1) of the 1975 Act requires a court to address “need” for maintenance in the case of all applicants other than spouses in both considering whether there has been a failure to make reasonable financial provision and, if so, what order should be made.

That sense of entitlement was a feature too in another recent case of Shapton v Seviour [2020] 3 WLUK 537. In that case, the deceased had left his estate worth about £270,000 to his second wife, Maria. His daughter under and earlier marriage made a claim under the 1975 Act. She was 32, married and owned her 3 bedroomed house subject to a mortgage. She and her husband were both employed although she had debt of about £20,000 and gave evidence that she also needed a larger home.

She sought £75,000.The judge described the application as “absolutely hopeless”. He criticised the daughter for being motivated by a sense of entitlement as the deceased’s only daughter and swiftly rejected her claim.The moral of these two recent cases is that whilst adult children are entitled in theory to bring claims under the 1975 Act, those claims are unlikely to succeed unless any such adult child can satisfy a court at trial that they have a reasonable “need” for maintenance from their parent’s estate.To that extent, the 1975 Act may not represent such a restriction on testamentary freedom as first feared.

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