Provision for Adult Children Moral Imperative by liaoqinmei

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									          Provision for “Adult Children”: A Moral Imperative?
The Inheritance (Provision for Family and Dependants) Act 1975 was enacted to give
dependants a chance of receiving financial provision from a deceased’s estate even if they
were not named in the deceased’s will. For many years it was commonly assumed that so-
called “adult children” (i.e. sons or daughters of working age) could not successfully make a
claim for financial provision under the 1975 Act unless they could prove the deceased owed
a “moral obligation” to them.

The recently decided Court of Appeal case of Ilott v Mitson (2011 EWCA Civ 346) indicates
that this assumption is wrong and there may be many more valid claims that could be
brought by such adult children than had previously been thought.

The facts of the case were that a mother disapproved of her daughter’s choice of husband.
The two of them became estranged and by the time the mother had died they had not
spoken to each other for many years. The daughter did not work and her husband only had
occasional work as a film/TV extra. The daughter and husband had five children and their
income was 75% dependent on benefits and tax credits. The mother in her will left all of her
estate (worth approximately £480,000) to charity and nothing to her daughter.

The daughter claimed provision out of the mother’s estate under the 1975 Act and the claim
was originally heard by a district judge in the Principal Registry of the Family Division. He
decided that the daughter should receive £50,000. The daughter appealed and the charities
then cross-appealed. The judge hearing the appeal in the High Court decided that the
district judge was wrong and that the daughter should receive nothing because there was no
“moral obligation” owed to the daughter.

Exceptionally, the daughter was able to get permission for a second appeal. The Court of
Appeal, with Sir Nicholas Wall (President of the Family Division) giving the leading judgment,
decided that the district judge had been correct to find that even though the daughter could
not prove any “moral obligation” was owed to her by the mother she was entitled to financial
provision from her mother’s estate under the 1975 Act and the claim should be referred back
to the High Court to determine how much should be awarded in respect of her claim.

Sir Nicholas Wall took especial care in his judgment to demonstrate that the commonly-held
belief that a “moral obligation” had to be proved by an adult child (which principle was
believed to derive from the case of Re Coventry Deceased [1984] 1 Ch. 461) was based on
a misunderstanding of the law.


Cumberland Ellis LLP                                                  Tel +44 (0)20 7242 0422
Atrium Court                                                         Fax +44 (0)20 7831 9081
15 Jockey’s Fields                                                   www.cumberlandellis.com
London WC1R 4QR
As there is no general requirement for a “moral obligation” to be established, the court when
considering what payment (if any) should be made, must now only weigh up the factors set
out in section 3(1) of the 1975 Act as follows:

    The present and likely future financial resources and needs of the applicant;
    The present and likely future financial resources and needs of any other applicant;
    The present and likely future financial resources and needs of any beneficiary of the
     estate;
    Obligations and responsibilities of the deceased towards any applicant or beneficiary;
    The size and nature of the estate;
    Any physical or mental disability of any applicant or beneficiary;
    Any other matter, including the conduct of the applicant, or any other person, which the
     Court considers relevant.

Any adult children in need of financial provision and not provided for in their deceased
parent’s will may now wish to think about whether or not a claim should be made under the
1975 Act. Any such claim must be brought within 6 months of the date of the grant of
probate.

If you want advice about bringing such a claim you can contact Adam Colenso, head of the
Private Client Litigation Team at Cumberland Ellis, for more information on 020 7242 0422 or
at adamcolenso@cumberlandellis.com




Cumberland Ellis LLP                                                 Tel +44 (0)20 7242 0422
Atrium Court                                                        Fax +44 (0)20 7831 9081
15 Jockey’s Fields                                                  www.cumberlandellis.com
London WC1R 4QR

								
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