When a Will doesn’t make ‘reasonable provision’

Each of us has the right to decide what should happen to the things we own when we die.

Making a Will gives the best chance of ensuring that our intentions play out. And people make all sorts of provisions, from leaving a sum of money to a charity, to an heirloom passing to a niece, to the entire estate (everything they own) going to a single person.

While a Will should give certainty, it is capable of being challenged on a number of specific bases. One of these is that the Will does not make reasonable provision for someone close to the person who died. Only certain people can make this type of claim, but this does not in itself mean they will necessarily succeed:

• The spouse or civil partner of the deceased

• A former spouse or former civil partner of the deceased who did not go on to re-marry or enter into a new civil partnership

• A child of the deceased

• A person treated by the deceased as a child of the family

• Anyone who was maintained by the deceased

• Someone who had lived with the deceased, as if married or in a civil partnership, for at two years immediately before the deceased’s death.

The claim needs to be brought within six months of the Grant of Probate, and the court will look closely at the precise circumstances – including mental and physical health, and earning capacity - of the person bringing the claim, as well as those of other beneficiaries who may be in the Will.

Any claim involving the competing interests of those close to a person who has died can be emotionally challenging and potentially devastating to ongoing relationships. In some instances, they may even attract media attention. One case in recent weeks that found its way into The Times was that of Carly Shapton who claimed a £75,000 entitlement from her deceased father’s £268,000 estate. The estate had been left to Carly’s stepmother who is reported to have argued that she would have to sell her home if the payment were to be ordered. The stepmother suffers from motor neurone disease and said she needed the assets to provide for her future needs.

The outcome of that particular case has not yet been decided. But it is certainly not alone in the types of difficult issues it raises. While the ideal scenario is that every Will leads to outcomes deemed fair to all those involved, that is not the reality. The key consideration for those who feel that reasonable provision was not made for them is whether to begin a legal process that could see things rectified in their favour.

Update:

Since this blog was written a decision has been reached in the case of Shapton v Seviour. Deputy Master Lloyd dismissed the application brought by Carly Shapton, describing the application as ’absolutely hopeless’. In his judgment he identified three factors in coming to the decision; the estate was small, the claimant and her husband had a high income and comfortable life, and finally the defendant who is disabled with a terminal illness needed 'every penny to live out her remaining years in dignity and comfort'.

What the decision in the case of Shapton v Seviour highlights is the difficulty in making a claim against an estate under the Inheritance (Provision for Family and Dependants) Act 1975 but it does not detract from the importance of making reasonable provision under your Will to prevent claims being made.

To talk to us about your particular circumstances and ensure you are making reasonable provision for your loved ones, call us on 01264 353411 or email wills@bsandi.co.uk