A claim for reasonable financial provision from the estate of a deceased person are generally brought by those who had a close relationship with the deceased. Usually, but not always, there is an actual family relationship.
Nevertheless, it is recognised that in this modern age the family unit is not necessarily comprised of a husband, a wife and 2.4 children. In many instances, even with a marriage, the children living in the relationship are only the natural child of one party to that match. It is becoming increasingly common for parents to raise families without ever marrying at all, and our old-fashioned legal system is finally starting to recognise that the parenting couple might even be of the same sex.
Unfortunately, other legal rules have not necessarily caught up. For example, if the person dies without making a Will, assets might be passed to a natural child but will never be passed to a step-child. This might be a very bitter pill to swallow for the step-child who knows that the deceased person acquired all his or her assets from the step-child’s own natural parent.
Sometimes, the lack of provision is not occasioned by the laws of intestacy, but rather the specific intent of the deceased person. We see frequent circumstances where the 2 parties to a relationship (which might have been formed later in life) each have children from previous relationships, but when one dies, the survivor only chooses to provide combined family assets for the benefit of their own children, and not that of their step-children.
If you are affected by the circumstances, it is possible for a you to apply for reasonable financial provision to be made for you from the deceased’s estate, if it can be shown that the deceased treated you “as if you were a child of the family”.
The rules upon which such a claim is based used to be more limited. It used to be the case that you could only make such an application if your parent was married to the deceased. However, in recent times, the rule has been expanded so that it accounts for various other circumstances outside of a marriage where a person might still have been treated “as a child of the family”.
Further, the rule is not limited to people under the age of 18.
It is first of all necessary to prove that there was a family unit and, secondly, that you were treated as a child of that family unit. Therefore, in the absence of the family unit, a claim will fail. At the time of writing, there has only been one legal case in which this issue has been tested. In those circumstances, the Claimant sought to demonstrate that a close family friend treated her as a child of the family because “he always thought of her as the daughter he could never have.” The court felt it most relevant that the family friend was not actually part of the family, and nor did he have one of his own, and therefore the Claimant could not have been treated as a child “of the family”, even if she was so much in favour with the deceased that he viewed her as being equivalent to a daughter.
The original rules only really applied to step-parents. The amended rule also applies to families where there is no marriage, or where the child-rearing arrangements are otherwise outside of traditional family norms.
It is the quality of the relationship between the Deceased and the child that should determine eligibility to claim against the Deceased’s Estate”.
If that fact is established, the court will view the remainder of the claim in a similar vein to a claim brought by a natural child of the deceased.
If a child is under the age of 18, then a claim for provision ought easily to succeed.
If the child of the family unit has grown up and become financially independent, then there will be a harder job proving that provision ought to be made. Nevertheless, certain factors may well be favourable to a successful claim, such as: –
- Where the child was devoted to the person who acted as if a parent, living with him/her and doing everything for him/her.
- Where the child was working in the will-maker’s business for less than fair commercial terms.
- Where the will-maker had some justifiably moral obligation to make provision for the “child of the family”.
- Where the child does not have an earning capacity of his/her own.
- When the will-maker promised the child’s natural parent that the child would benefit under the Will, in circumstances in which it would be unconscionable for him not to fulfil the promise.
- When the will-maker actively encouraged the child to believe that he/she would benefit, and that the child acted to his/her own disadvantage as a result of that encouragement.
- When the parent was already providing financial maintenance to the child immediately before death.
If you believe that you have been treated unfairly by your parent’s Will, contact us to discuss matters further.