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There have been three cases concerning wills over the past couple of weeks, so we thought it might be time again to take a look at this rather ‘niche’ area of the work we do. As specialists in family law, we don’t deal with the making of wills in general, except for reminding our clients (of course) that the fact of divorce affects inheritance under a will, and when you’re going through a separation you may wish to update yours to make sure it reflects what you would wish to happen to your property in the event of your death. However, from time to time we deal with claims made against wills or estates where someone feels that they should have reasonable provision, but this hasn’t been made. A couple of cases have shown up how tricky this situation can get.

The relevant law is the Inheritance (Provision for Family and Dependents) Act 1975. It allows any family member (including a former spouse, unless this is specifically disallowed by their remarriage or a court order) or anyone who was being financially maintained by the deceased to be able to make an application to court for “reasonable financial provision” if this has not already been made for him or her. It also applies to those who had been living with the deceased “as husband or wife” in the same household for a period of two years.

The first case to look at is one that went all the way to the Supreme Court, which gave its judgment last week. Here, a woman had died leaving her entire estate – about half a million pounds – to animal charities. Her grown-up daughter, from whom she had been estranged for 24 years, launched a claim for reasonable provision from the estate, and the charities defended it. The daughter had five children and most of her income was derived from state benefits. She had always known that her mother did not intend to leave her anything in her Will.

The district judge who first heard the case had ordered that £50,000 should be paid from the estate to the daughter. The daughter appealed on the basis this was too little, and the charities cross-appealed on the basis that there was no failure to make reasonable provision in the first place. The Court of Appeal held that the initial district judge had made a mistake in law, and upped the award so that it would enable the daughter to buy her house and have a lump sum. The charities appealed again.

The Supreme Court overturned the judgment of the Court of Appeal and held that the initial district judge had been right after all, and that the exercise of his judgment had been entirely within the ambit of the discretion he had been given by the law. The fact that it might not have been the order that the Supreme Court, or any other judge or court, would have made, does not mean that it was wrong. Lady Hale, in a supplementary judgment, commented that one of the significant problems with this area of law is how little guidance is given to judges by the statute about what matters should be taken into consideration when considering claims from different classes of potential beneficiaries, and whether a circumstance of dependence on the state should be a relevant factor.

Another case in this week’s news is one where a deceased man’s estranged wife and long-term partner were arguing about entitlement to a half interest in a property, in which the man had lived with his long-term partner after leaving his estranged wife. The partner owned the other half of the property, but the man’s share in it had passed to his wife as he had not updated his will on their separation. The initial judge decided that the half share should be transferred to the partner, so that she owned the house absolutely. On appeal, this was reduced to a life interest in the 50%, so that the partner can remain there until she dies (or move with the benefit of the money), and the money will revert to the wife on her death.

This case highlights a couple of things that we bang on about with some regularity: the lack of rights and protection for cohabitants, even where property is jointly owned as in this case, and the importance during and after family change of making sure that your testamentary arrangements reflect what you wish to happen in the event of your death.

On a more unusual note, there’s been one more Will claim recently– an application by a woman who wanted to unseal the will of the late HRH Princess Margaret, because she claimed to be her illegitimate child and named within it. The will is in a sealed envelope that can only be opened by the President of the Family Division. The President of the Family Division said, “I have no hesitation in concluding that I should strike out the applicant’s claim. My reasons for doing so are shortly stated. The applicant has not articulated any intelligible basis for her claim. The facts alleged by the applicant neither assert nor identify in any intelligible way either any link with HRH Princess Margaret or any link with her will. The applicant has not identified the grounds or the source or sources of the various beliefs upon which she relies. In short, her application is hopelessly defective.”

If anything in this article has raised questions for you, or you need advice on any other aspect of family law, please do call us on 01223 443333 and make an appointment to speak to Gail, Adam, Sue, Tricia or Simon.