Under the 1975 Act, a testator (a person who makes a Will), dies domiciled in England and Wales. They could be presented with a claim for reasonable provision from the following:
- The spouse or civil partner of the deceased;
- A former spouse or former civil partner who has not remarried or formed a subsequent civil partnership;
- A child of the deceased;
- Any person treated by the deceased as a child of the family;
- Any person who immediately before the death of the deceased was being wholly or partly financially maintained by the deceased;
- Any person who was at the time of the deceased’s death, and during the whole of the preceding two years, living in the same household as the spouse of the deceased.
All the above categories could have a valid claim against an estate if adequate or reasonable financial provision was not made for them.
Who decides on any claims against my Will?
For a claim to succeed against an estate under the 1975 Act it would depend completely on the discretion of the court. In essence, the court may make an award after carefully balancing the wishes of the deceased, the facts of the case, the interests of the beneficiaries and the available assets to satisfy those claims.
The role of the court is to carefully assess the needs of the parties concerned, whether it was the testator’s duty to satisfy those needs and if it is reasonable for the court to interfere under the terms of the Act. All of the above is at the discretion of the court.
According to caselaw, the court has set out the following principles:
- A testator has testamentary freedom but at the same time, he/she has an obligation to make reasonable provision for a spouse or minor children.
- The approach of the court should be a two-stage process:
- Was it reasonable for the testator not to make provision; and
- In the event that the provision or lack of it, is unreasonable, the court must decide at their discretion what provision should be made under the 1975 Act.
Summary
Being aware of potential claims against an estate from the start, before making a Will, allows a testator to prepare against potential challenges. When making a Will, you may decide to leave a letter explaining the reasons for not making provision for certain family members. Whilst the letter may not be binding in court, the letter can express your wishes when you are no longer here. It will off course still be a decision of the court, after weighing all the evidence in the case, whether the Will makers wishes should be followed and if it is right and just to do so.
Family structures, relationships and responsibilities have evolved dramatically over the years. Therefore, last century the traditional view of a normal family structure and marriage may not apply to today’s common view, which is why the law has been evolving to cope with the constant changes in today’s world. In most cases where a dispute over a Will occurs (typically between family members) it is best to seek to resolve any disputes amicably. Where this is not possible then court action might be the only alternative, but it comes at a cost both personally and financially.