My virtual post bag brings me a very sad enquiry involving potential Inheritance Act claims. I will refer to my enquirer as ‘C’ – who tells me:
My ex husband died by suicide a couple of weeks ago, I have custody of our 2 children 14 and 16 years old. We had a maintenance agreement for many years, however last year he lost his job so my maintenance payments stopped. However in our divorce/maintenance papers it states that a provision has to be made in his will to support his children should he die.
Now I have never seen his will and have no idea what it states or even if there is a will. He remarried a few years ago. I nor my children has NO relationship with his wife to the point where his children have not been invited to his invitation only funeral. Due to the lack of maintenance for the past year I have no funds to engage a solicitor to help me, so I have been reading as much as possible online where I came across your site. How can I
1) Find out if a provision in his will for his children has been made
2) What can I do if there is no provision or will?
I know you cannot give me personal advice but any suggestions of where I can start would be gratefully received.
What an awful situation for all involved. It is particularly sad to read that C’s children will not have the opportunity to say goodbye to their father at the funeral. The death of a parent at their age will be very hard on them and the particular circumstances of the death doubly so. I sincerely hope that the children will be able to make their farewells in due course in a manner appropriate and helpful for them. C and her children may obtain assistance from the Childhood Bereavement Network which has a helpful directory of local services across the country.
Inheritance Act Claims
As C recognises, I don’t provide legal advice on this blog. And, in this case, as in so many others, I am not in possession of all the information. But I can make observations of a general nature which may help C, her children, and others who find themselves in similar positions. It is likely that a number of potential Inheritance Act claims arise. By Inheritance Act, I am referring to the Inheritance (Provision for Family & Dependants) Act 1975. Have a look at my previous post on a query involving the Inheritance Act for more details.
- It appears that that both C and her children could have Inheritance Act claims. But, in relation to C, she may only make a claim if she has not re-married. C may claim because she is an ex-spouse of the deceased who had the benefit (even if not being paid) of a spousal maintenance agreement still in existence at the point of death. The children had child maintenance agreements of some sort. It is, of course, very important to know whether the maintenance agreement was a private arrangement between C and her ex (perhaps in the form of a deed) or whether the family court gave an order, even by consent, setting out the terms of the maintenance payments.
- The fact that the deceased may not have been making payments before and at the time of death does not stop C making a claim on her own behalf as a dependant.
- C’s children, being minors, would need a Litigation Friend (someone who can step into their shoes for the purposes of legal proceedings) in order to take advice about any possible claim or to ask solicitors to take steps on behalf of the children in any court proceedings. It is likely that C could also act as Litigation Friend in any proceedings on behalf of her children. There can sometimes be a potential for a conflict of interest between a parent who is claiming against an estate and that parent’s children who are also claiming. This may mean in some cases that there are separate solicitors for the ex-spouse and her children. And the Litigation Friend may be another relative who can exercise judgement independent of the parent.
- Whilst the court may allow Inheritance Act Claims to be brought, it does not mean that they always succeed. Crucially, much will depend upon the size of the deceased’s NET estate (i.e., what is left after all the debts have been paid). If it is relatively small, it follows that there will be little to go around and a court may be reluctant to interfere with the Deceased’s Will by diverting funds away from the widow and towards an ex-wife. The children’s financial position would, however, still deserve serious consideration even in a small estate.
- Whether a claim will be successful does not just depend upon the value of the estate. The court will have to look at the circumstances of C, her children, as well as the widow, and any other beneficiaries under a Will who may lose out if C makes a claim.
- C is not sure if her ex had a Will. The quickest way to find out (but I’m not saying it’s the easiest) is for someone to ask the widow. I have no idea if the relationship between C and the widow is a good one. Let me guess, from what C tells me, that the relationship is poor or non-existent. But the widow could be asked, perhaps sensitively by a third party if necessary, about the Will. But, otherwise, I’m going to presume that C will get little or no information or response from the widow and therefore has to consider how best to protect herself and her children.
- C tells me that in the “divorce/maintenance papers” it states that provision had to be made in the deceased’s Will to support his children in the event of his death. I haven’t seen the agreement (or the court order if this is what it is). It is possible to give an undertaking (a form of solemn legal promise) to make provision in a Will for somebody else on certain terms. Such provision may even be irrevocable – that is, once you have made the change to your Will, you can never undo it. If you tried to undo it or, after your death, your estate tried to retreat from your undertaking, the person or persons with the benefit of the undertaking can apply to the court to enforce that benefit.
- I don’t know if the provision agreed to be made by the deceased in his Will was for a specified amount for the children – it it was for a specific sum and the Deceased’s last valid Will does not contain this provision then at the very least, the children should recover that sum from the estate.
- C needs to find out if her ex has a valid Will. The deceased re-married of course, which would have had the effect of revoking his prior Will (unless it was drafted in a certain way). I wonder how many people know that? So, there is the possibility that the deceased made the provision in his Will, as agreed with C, for his children, but then re-married without being aware that he had revoked his Will. So, after the remarriage, it is to be hoped that the deceased then made a new Will and remembered to include the provision for his children. The question is whether that provision is reasonable. If the NET estate is worth £100,000 and he has left £100 to each child, it may be imagined that a court would not regard that as being “reasonable provision”.
- But what if C’s ex did not make a new Will after re-marriage? In this case there would be an intestacy. The present rules on intestacy mean that ex-spouses do not benefit at all. Children will only benefit if the estate is worth £250,000 or over. If the estate is worth less than this then only the widow will benefit. But remember that Inheritance Act claims can be brought where the operation of the intestacy rules means that reasonable provision will not be made for a claimant. So if the deceased estate is intestate, and is worth less than £250,000 meaning the children get nothing, they can claim under the Inheritance Act. As can C.
- One issue that can arise is the value of the deceased’s home. If it is jointly owned legally and beneficially with his widow then upon his death the property would be automatically transferred into her name. If this is news to anyone then have a look at my post explaining the crucial difference between beneficial joint ownership and a tenancy in common. If the property has automatically been transferred to the widow by the death of the deceased, then its value (which may of course be significant) will not appear in the NET estate. It is possible in certain circumstances when applying under the Inheritance Act, to ask the court to exercise its powers under Section 9 of the Act to bring the value of the property belonging to the deceased (nominally 50%) back into his NET estate so any claimants can have their claims satisfied.
Next steps for C?
It would be prudent for C to consider the following action:
- Contact the widow, preferably in writing so there is a dated record, to enquire about her ex’s Will and the provision that has been made for the children, as previously agreed, and putting the widow on notice (respectfully and politely) about C’s possible claim as a dependant.
- If the children are beneficiaries under any valid Will, then the executors must let C (as the parent) know that the interest is in place and the value of any specific legacies (a fixed monetary sum or item of property). If the interest is in the residue of the estate (what is left after all the debts are paid and the specific legacies have been met, then C will be informed in due course. It is likely that the ex will have left the residue of the estate to his widow but, again, I simply don’t know.
- Straight away, C should look back at her divorce papers to see what record she has of her ex’s pensions and the addresses of the trustees or administrators. I don’t know whether C had any pension sharing orders or not at the point of divorce. In most pension schemes it is possible to make a nomination of a spouse or children to receive death in service benefits should you die before receiving your pension. Although no longer a spouse, C should advise any relevant pension schemes of the existence of her minor children in case her ex made a nomination to their benefit. Even if her ex did not make such a nomination, pension trustees can exercise their discretion in favour of spouses (probably not ex spouses but you don’t know if you don’t ask) and children. This step needs to be taken quickly in any event.
- The suicide may have invalidated any insurance policies – I don’t know. But in some cases, parents who have to pay maintenance agree to take out insurance to cover the loss of the payments in the event of their death. This agreement would normally be detailed in a court order. If such an agreement, and a subsequent policy, is invalidated by the suicide, then it should act to strengthen the likelihood of successful Inheritance Act claims, provided there is still a reasonable amount of value left in the estate.
- C can make an application for a Standing Search of the probate registry. This will tell her when an application had been made and granted for her ex’s estate to be administered, either under a Will or under the intestacy rules. If an application has been made, C will receive a copy of the Grant and a copy of the Will. It is unlikely that a grant will have been applied for already but the usefulness of the standing search is that it stays in place for 6 months so if a grant is given in the next 6 months, C will find out about it. C can renew her standing search for a further 6 months each time. C has six months from the date of the grant of representation to make any claim against the estate. A claim outside of this time may not be successful. This is called a limitation period and should not be ignored. The standing search is a nominal fee – £5.00 the last time I had to use it for a client.
- C should try to obtain legal advice. This area is complicated but C may be able to get a free consultation with solicitors local to her. C will have to make sure that they have experience of Inheritance Act claims. If it appears that there is a potential claim on C’s behalf and/or her children, her lawyers may be able to obtain funding from a litigation provider or may be prepared to fund the case and take their fees at the end if it is successful. As far as I am aware, there is no longer any legal aid funding for such cases so it is necessary to think through what other funding options may be available. Although legal aid is still available for mediation, I have not heard of many mediators dealing with Inheritance Act claims. Even the mediators who are also family lawyers, probably have little experience of Inheritance Act disputes.
I hope this post provides C with some assistance.