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Insights // 30 June 2021

Claims Against An Estate by Estranged Children: Court Can Backdate Award of Maintenance

Solicitor Sarah Grimwood, in our Wills, Probate, Tax & Trusts team, and senior solicitor Frances Kyle, in our Dispute Resolution team, look at a recent case and the issue of claims against an estate by estranged children.

In the recent case of Re R (Deceased) the Court considered a claim made by the deceased’s estranged sons, both minors at the time the claim was issued, for reasonable financial provision under the Inheritance (Provision for Family and Dependents) Act 1975.

Prior to his death, there had been no contact between the deceased and his sons for some time and child maintenance payments had not been agreed between the deceased and their mother. In his last Will, the deceased made no provision for his sons. The deceased also made a statement on the same day as the Will recording the reasons he did not wish for his sons to benefit from his estate. He cited his sons new life in Scotland with their mother and her new husband, the inability of the deceased to make contact with his sons for over three years and their mother’s refusal of the deceased’s offer of child support through the Child Support Agency. 

Despite this, the Court held that only in exceptional cases would the deceased’s obligation to maintain their child be completely severed. The fact that the deceased failed to provide child support (even if this had been offered) or that the child was treated by a step-parent as a child of the family (and therefore they should assume responsibility for the child’s maintenance) would generally not be a successful defence in response to an application made by a child of the deceased.

The Court distinguished this from applications made by a person, not being a child of the deceased, who was treated by the deceased as a child of the family. In these cases, the Court would need to consider whether and, if so to what extent, the deceased had assumed responsibility for maintenance of the child and the liability of any other person to maintain that child.

The Court also held that it had the power to back-date an award of maintenance to the date of death or such later date as it considers appropriate (e.g. the issue of the claim).

This case illustrates that excluding minor children from a Will is likely to lead to a successful claim against an estate in the future, even in circumstances where there has been a breakdown in the relationship between parent and child. It is important to consider these implications at the point of drafting the Will and our Wills, Probate, Tax & Trusts team is able to assist with this process. 

However, sometimes it is simply too late and the person has already passed away making no, or inadequate, provision for their minor children in their Will. In these circumstances, our Dispute Resolution team is able to advise on making and defending claims under the Inheritance (Provision for Family and Dependents) Act 1975.

For further information or legal advice, please contact law@blandy.co.uk or call 0118 951 6800.

This article is intended for the use of clients and other interested parties. The information contained in it is believed to be correct at the date of publication, but it is necessarily of a brief and general nature and should not be relied upon as a substitute for specific professional advice. 

Sarah Grimwood

Sarah Grimwood

Solicitor, Wills, Probate, Tax & Trusts

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Frances Kyle

Frances Kyle

Senior Solicitor, Dispute Resolution

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