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Should Wills provide for children?

14th February 2019 by Rob Kelly

Categories: What's New?
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Following the 2017 Supreme Court case of an adult daughter who successfully claimed financial provision from her late mother’s estate even though they had been estranged for around 25 years and the deceased had left a note explaining why she had disinherited her daughter, the county court has given judgment in the case of Nahajec v Fowle.

This was a claim by an adult daughter against her late father’s estate.  The estate was valued at £264,000 which the deceased had left to a friend.  The deceased had been estranged from his daughter, and his two sons from an earlier marriage, for around 18 years.  When he made his will the deceased also wrote a letter to his executor explaining why he did not wish his children to benefit from his estate.

Not unlike the claimant in the Supreme Court case, the claimant in Nahajec v Fowle was in financial difficulties.  She claimed that the estrangement was not her fault and that her attempt at reconciliation with her father had been rejected by him.

Applying the Supreme Court decision, the judge held that the Inheritance (Provision for Family and Dependants) Act 1975 requires the court not to ask itself whether the deceased acted unreasonably in formulating his will in the way that he did but rather whether, looked at objectively, his disposition or lack of disposition produced an unreasonable result in that it did not make any, or any greater, provision for his daughter.  In this case the deceased’s daughter had aspirations to be a veterinary nurse and her claim against the estate was, in part, to fund her through the training for that.

The judge said of the deceased’s note with his will that it was “a factor to go into the balance” but said that he “was impressed by the evidence of the claimant and the manner in which she gave it”.  Significant weight was attached to the claimant’s evidence as to why she had no relationship with her father and the judge held that the deceased’s note did “not sufficiently undermine the evidence of the claimant as to why she had no relationship” with her father, which was not for want of trying on the part of the daughter.

The court held that reasonable financial provision had not been made for the claimant, and taking everything into account, the judge awarded the claimant £30,000.  (She had been seeking £70,000.)

If you would like further information about this article please contact Rob Kelly.

 

 

Rob Kelly

Senior Associate — Dispute Resolution

Direct dial: 01202 377871

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Rob Kelly
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Rob is an Associate Member of the Chartered Institute of Legal Executives (September 2009).  Rob also holds an LLB (Hons) degree in law.  He successfully completed training as a mediator under the ADR Chambers / Harvard Law Project Scheme and was one of the first mediators to have been appointed an IMI Certified Mediation Advocate in the UK with a commercial practice.

Rob specialises in dispute resolution through litigation, arbitration and mediation, with particular emphasis on contractual disputes, claims involving allegations of professional negligence (which he has prosecuted on behalf of commercial and private clients and defended on behalf of insurers, re-insurers and Lloyd’s syndicates). He is regularly instructed in connection with substantial disputes involving contractual, professional negligence, contentious probate issues.  Rob also deals with contentious property and landlord and tenant issues.

Rob’s style is a mix of listening, asking (tough) questions, diplomacy and reality testing. He’s interested, flexible, and pragmatic. He offers a common sense, realistic approach to assist his clients in searching for solutions to their disputes and brings straight talking and integrity to his work.

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