Reasonable provision for children – Re R (Deceased) [2021] EWHC 936

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In the case of Re R (Deceased) [2021] EWHC 936, a claim was brought under the Inheritance (Provision for Family and Dependants) 1975 Act (“the Act”) for reasonable financial provision from the deceased’s estate.

Facts

The Claimants were 17 and 18 years of age at the date of the hearing. Their mother had remarried and relocated to Scotland in 2013 after their parents had divorced in the previous year. Their father had continued to have contact with them, but this declined over time and ceased altogether in 2014. The exchange of Christmas and birthday presents continued between them until 2016 but the Claimants’ father paid no child maintenance. However, the Claimants were looked after and maintained by their mother’s new husband, which included payments for their private education.

The Claimants’ father died and left a Will. His estate was valued between £520,000 to £720,000. The Will gifted his shares in one company to his parents and his shares in another company to his partner of seven years. However, it also stated expressly that no provision was to be made for his children and a statement left with the Will stated the reasons why the deceased did not wish for his children to benefit from the estate.

Whilst the deceased was alive, the children’s mother had made an application for child maintenance to the Child Support Agency (CSA). The mother was offered £15 per week after an assessment by the CSA, which she refused. This was one of the reasons covered in the deceased’s statement which accompanied his Will, along with the fact that the mother had left him to start her new life with her new husband in Scotland and she had taken their children. He had been prevented from having contact with the children and their mother had made it clear that she did not want the deceased to be part of their lives.

After the deceased’s death, the children brought a claim for reasonable financial provision from the estate with their mother acting as their litigation friend.

Judgment

In his judgment, Master Teverson held that the lack of financial provision was not reasonable. Even in circumstances where the deceased father had no contact with his children, and where another had assumed responsibility for maintenance of the children, it would only be in ‘most exceptional circumstances’ where the Court would accept that the father’s obligation to maintain had been completely served’. There was no concept of a ‘clean-break’ in respect of child maintenance.

Master Teverson set out the general principles for a claim for ‘reasonable financial provision’ under the Act and identified the leading case of Ilott v The Blue Cross [2018] AC 545. He held that in respect of the general principles and the leading case, the issue for determination was ‘whether, and if so, how far the deceased’s estate should be required to prove for the children’s maintenance until they are in a position to earn a reasonable wage or salary’.

Master Teverson also considered whether the Will made reasonable financial provision for the children. He recognised that at the point when the mother and deceased divorced, the children were attending a fee-paying school. This meant that there was always an expectation that the children would be privately educated. The Master therefore concluded that the Will did not make reasonable financial provision for the children.

Master Teverson recognised that there was a distinction between an application under s1(1)(c) of the Act and s1(1)(d) which was an application by a person who had been treated as a child of this family.

For a claim of a person who had been treated as a child of the family, the Court considers whether the deceased had to maintain the child, for how long and on what basis, and whether there had been an assumption of responsibility. It was held that, under s1(1)(c), the latter considerations were not appropriate. It was stated by Master Teverson that a lack of contact between a claimant child and the deceased, as well as an assumption of responsibility for the children by another, could not generally be relied on by a defendant to defeat the claim.

The Master also rejected the argument from the mother that she had met the needs of the children since the divorce without any maintenance contributions from the deceased. It was sought that it would be reasonable and fair for the mother to look for those needs to be met from the estate. Master Teverson concluded that it was the mother who decided to continue to privately educate the children and therefore it was up to the mother to approach the deceased if she could not afford to continue to pay the associated fees. The Master also expressed that the Court must bear in mind what is reasonably required for the children’s maintenance.

Applying the above, the Court held that in the circumstances of this case, reasonable financial provision for the children must be made from the estate and should be calculated as follows:

  1. 50% of the living costs from the date of the hearing until the children attain 25 years of age
  2. To pay all school fees of the older child for his last year of school
  3. To pay all school fees of the younger child from his fifth year of education and 80% of the fees from his sixth year of education
  4. No liability to pay any additional costs for schooling. The mother is liable for this.
  5. To pay 50% of the children’s car related expenses. It was held to be reasonable for each child to have a reliable second- hand car.
  6. No liability to pay university fees if attending a university in Scotland. With respect to accommodation, to pay 50% of the costs
  7. No liability to finance the purchase of a property for the children once they have left 50% of the costs for accommodation for a year after leaving university.
  8. To pay 50% of private counselling for the children.

A total of reasonable financial provision for the older child amounted to approximately £68,000, whilst it amounted to approximately £118,000 for the younger child.

Summary

  • No provision had been made for the children and the deceased intended that the children did not inherit from the estate.
  • Simply because the deceased failed to provide the children with maintenance during his lifetime, this did not mean that the estate should now be penalised or expected to compensate those who have historically provided for the children.
  • The Court will carefully consider the facts of the case to assess what constitutes reasonable financial provision.
  • The Court was clear that even where a parent ceases to have contact with their children, and in circumstances where they are maintained by another person (such as here), the parent does remain under an obligation to make reasonable financial provision for their children on death. If the parent fails to do so, the Court will usually make an order for such reasonable financial provision to from the estate.