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  • 08 October 2019 Wellesley v Wellesley: A 1975 Act Update by James Prothero

    1975 Act : Case Update

    Wellesley v Wellesley & Ors [2019]

    The firm recently acted for The 8th Earl Cowley and five members of his family in the defence of a claim under the Inheritance (Provision for Family and Dependants) Act 1975 (“the Act”) brought by the estranged adult daughter of the 7th Earl Cowley, his father.

    The claimant was 56 years old and had been estranged from her father for 35 years at the time of his death in 2016. The estrangement was mutual as, although the deceased had wished to afford to his daughter the same opportunities that he had to his other children, he would not condone her bohemian lifestyle.

    Despite the 35-year estrangment the deceased left the claimant a pecuniary legacy of £20,000 out of a total net estate of approximately £1.32m. The claimant then brought proceedings under the Act on the basis that £20,000 was not sufficient to meet her needs, that a gift of £20,000 was disproportionate to the size of the deceased’s net estate, and that her son has disabilities for which funds are required for support. In addition, the claimant argued that her expenditure far exceeded her income (which was modest) and that she wished to use some of the money she would receive from the estate to pursue a career in art. She relied on the recent Ilott v The Blue Cross [2017] Supreme Court decision (where the trial judge’s award was reinstated) as a precedent that she should receive (at least) 10% of the deceased’s net estate. The matter went to trial and was heard in December 2018.

    Judgment

    As necessary in a claim under the Act, the Court considered the factors listed in section 3(1). At trial the claimant was only able to provide scant evidence in support of her outgoings and under cross-examination admitted that she did in fact live within her means. The Judge also found that the claimant’s ambition to be an artist was unrealistic as it would require at least £25,000 per year in overheads to establish a studio.

    It was emphasised that it would be inappropriate for an award to be made with reference to specific percentage awards from previous cases, as the claimant argued. The Judge noted that if Parliament had intended for a percentage approach to be applied it would have stated so.

    In relation to any obligations or responsibilities the deceased may owe to the claimant, the Judge noted that none of the deceased’s other children expected
    financial maintenance when they reached adulthood. The Judge emphasised the point made in Ilott that an obligation of the deceased towards a claimant is not created solely by virtue of the claimant’s financial need. The fact that the claimant had been estranged from the deceased for 35 years (almost her entire adult life) meant that she could not have reasonably expected to inherit.

    The Judge accepted that the claimant has ADHD. An expert report from an occupational therapist stated that the condition inhibits but does not prohibit
    the claimant’s ability to work. It was therefore held that she was able to work to help support herself, as also evidenced by her carrying on voluntary work
    prior to bringing the claim. It was, however, decided that her son’s disabilities were not relevant to her claim as he did not live with the claimant and she had had no financial responsibility for him for some seven years. In any event, her son does not fall within any of the section 1(1) categories of claimants, and he was not maintained by the deceased.

    The Judge emphasised that the deceased’s testamentary wishes should be taken into account and should be respected. He referenced paragraph 47 of Ilott, where Lord Hughes stated that “it is not the case that once there is a qualified claimant and a demonstrated need for maintenance, the testator’s wishes cease to be of any weight”. In this case it was found that the deceased had clearly considered his provision for the claimant before his death, and had also included the gift of £20,000 in an earlier Will executed in 2013.

    Having weighed these factors the Judge found that the claimant’s responsibility for the extremely long estrangement outweighed any elements in her favour,
    including that of her financial need. He found that the deceased’s Will did not fail to make reasonable financial provision for the claimant beyond her £20,000
    legacy and that the claimant’s needs could be discharged out of this amount. The Judge therefore dismissed the claim in its entirety.

    Conclusion

    The case acts as a cautionary tale for adult children who have been estranged from their deceased parent and who then seek to bring a claim for reasonable
    financial provision out of their estate. The Court has again made it clear that an adult child estranged from a deceased parent, or who has lived entirely
    independently from them, will face an uphill battle in persuading the Court that any further provision should be made for them out of the estate, even where an element of financial need exists.

    The facts of this case were similar to those in Ilott. Both cases involved a proctracted and acrimonious estrangement between the deceased and an adult child of modest financial means. The principal difference was, however, that in Ilott the claimant was the only surviving family member, whereas in Wellesley the claimant was competing with both the surviving spouse and her sibling and step-siblings. No award was granted by the Court in this case, whereas the Supreme Court in Ilott upheld the first instance award of c.£50,000 (which was circa 10% of the deceased’s net estate). In Ilott there was no pecuniary legacy to the claimant at all, and the Court also found that absent any award there was little prospect of the claimant’s financial position ever improving.

    In the Wellesley case the claimant had been left a gift of £20,000 by her deceased father and the Court considered that gift to be reasonable financial provison for her in the circumstances of the parties’ estrangement. This gift had been left to the claimant with a view to the possibility that she would bring a claim. The fact that the deceased had carefully considered the position of his daughter and had left her something was accorded significant weight by the Court. Testators who are concerned about a claim being made against their estates should consider adopting this approach, albeit their strong desire may be to leave the child out of account entirely.

    Sinclair Gibson routinely acts for those bringing and defending claims under the Inheritance (Provision for Family and Dependants) Act 1975. For further information, or for
    any other information relating to a dispute, please contact a member of the litigation department.

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