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Should Wills provide for children?

6th January 2022 by Rob Kelly

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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
  • “I've worked with a fair few lawyers over the years and Rob Kelly is the most on the ball and efficient lawyers I've ever come across. I'm looking forward to working together for many years to come.”

    Roger Woodall CEO - Diamond Sporting Group

  • “I have had the pleasure of working with several members of the team at Laceys regularly over a period of years. I found Rob Kelly in particular, who worked on a successful litigation case for me over a period of several years to be outstanding in all aspects of the work he undertook, and the manner in which he did it. I now consider him a friend. I would not - and have not - hesitated to recommend Laceys to my family and friends, and continue to use them for all legal matters.”

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    Mehdi Vahdati, Director and Proprietor - Indian Ocean (Bournemouth) Limited

Rob practices in two main, complimentary areas of work – contentious wills, probate and trust disputes, and property disputes.

Contentious wills, probate and trusts

More than half of Rob’s time is spent dealing with the contentious aspects of wills, probate and trusts, an area in which he has practiced continuously for over 20 years.  He advises and acts in disputes relating to wills and inheritance, trusts, the duties of trustees and personal representatives, and the administration of estate.

Rob’s practice embraces:

  • Personal representative and trustee disputes (including personal representative and trustee disagreements, removals / substitutions and alleged misconduct)
  • Disappointed beneficiary claims
  • Will disputes (where the validity of a will is challenged on the grounds of undue influence, lack of testamentary capacity, lack of knowledge and approval of the contents of a will, and fraudulent calumny)
  • Financial provision claims under the Inheritance (Provision for Family and Dependants) Act 1975
  • Proprietary estoppel claims
  • Disputes about the proper construction, and rectification, of wills
  • Caveats
  • Professional liability claims arising from the preparation of wills and trusts and the administration of estates

He has mediated (either as appointed mediator or as a representative) dozens of disputes involving contentious wills and probate issues.

Property disputes

The other side of Rob’s practice is contentious property work.  This embraces:

  • Residential and commercial landlord and tenant disputes
  • Disrepairs
  • Repairing covenants
  • Possession claims
  • Lease termination and lease forfeiture
  • Dilapidations
  • Service charge disputes
  • Interpretation and enforcement of leasehold covenants

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.

Rob is an Associate Member of the Chartered Institute of Legal Executives.  He holds an LLB (Hons) degree in law.  He successfully completed training as a mediator under the ADR Chambers / Harvard Law Project Scheme in June 2006, was one of the first mediators to have been appointed an IMI Certified Mediation Advocate in the UK with a commercial practice, and is a member of the Civil Mediation Council.

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