Financial Matters on Death
Making A Will | Distribution on Intestacy | The Spouse | The Issue | Family Provision | The Spouse | The Former Spouse
Children | Stepchildren | Cohabitants and other Dependants | Possible Orders
These Family Law pages were originally prepared by the Law Department at St. Brendan's Sixth Form College. They are no longer being updated and no responsibility is accepted for them by St. Brendan's College or LawTeacher.net
This Chapter was last updated on 3 August 2000
Any adult of sound mind, whether married or not, can dispose of his or her own property by making a will. The law generally respects the testator's freedom of choice in this matter, and if the testator chooses to leave everything to a favourite charity, a disappointed beneficiary rarely has any legal remedy. In Banks v Goodfellow (below), Cockburn CJ said English Law prefers to let a man dispose of his own property as he wishes, rather than make the disposition for him. This chapter deals with some of the formalities of making a will and with certain exceptions to the general principle of testamentary freedom.
We note first, however, that jointly owned property cannot be disposed of by will, but passes automatically to the co-owner by jus accrescendi. It follows in particular that any property owned jointly by the deceased and his or her spouse - the matrimonial home, for example, in many cases - passes automatically to the surviving spouse irrespective of any provisions in the will.
MAKING A WILL
Any adult of sound mind can make a valid will. Under s.7 of the Wills Act 1837, as amended, a person under 18 cannot make a valid will unless he is a soldier on active service or a sailor at sea or about to set sail. Such "privileged wills" give rise to some interesting problems in the law of succession, but need not trouble us further in a course concerned primarily with family law.The testator at the time of making the will must also have been of sound mind, memory and understanding. In theory the burden of proving this rests on the person seeking probate, who may have to call evidence of the testator's state of mind at the time. In practice, however, so long as the will is not irrational on its face, the testator's competence is normally taken for granted unless it is called into question by a disappointed beneficiary.
- Banks v Goodfellow (1870) LR 5 QB 549, Cockburn CJ
- T suffered from a recurrent delusion that he was being pursued by evil spirits, and the validity of his will was challenged. The judge said it is essential that a testator understand the nature of the act he is performing and its effects, understand the extent of the property of which he is disposing, and be able to comprehend and appreciate the claims to which he ought to give effect, and that no insane delusion shall influence his will. In this case, however, T's delusion would not have affected the provisions of his will, and his testamentary capacity was therefore unimpaired.
- Boughton v Knight (1873) LR 3 P&D 64, Hannen P
- T made a will leaving most of his estate to PP, and after his death his relatives DD claimed he had not been of sound mind. The judge said a man is not incapacitated by capricious, frivolous, mean or even bad motives, and the court's duty is to give effect to the true expression of his real mind. But he must have a memory to recall the several persons who may be fitting objects of his bounty (which is not to say that they must all be beneficiaries of his will). Whatever degree of mental soundness might be required for responsibility for crime, capacity to marry, capacity to make a contract, or capacity to give evidence, the highest degree of all is needed to constitute capacity to make a testamentary disposition, since it involves a wide survey of facts. In the light of this instruction, the jury found that T had not been of sound mind, memory and understanding when he made the will, and it was duly set aside.
- Wintle v Nye [1959] 1 All ER 552, HL
- A solicitor D took the substantial residue under a complex will (and a subsequent codicil) he had prepared for an elderly lady T. Viscount Simonds said for a unanimous House of Lords that while there was no law preventing such a thing, it created a grave suspicion and cast an exceptionally heavy burden of proof on the solicitor-beneficiary. In particular, his own evidence that T knew and approved the contents of the will should not have been accepted without the closest scrutiny.
- Wills Act 1837 s.9 (as amended)
- No will shall be valid unless
(a) it is in writing, and signed by the testator or by some other person in his presence and at his direction; and
(b) it appears that the testator intended by his signature to give effect to the will; and
(c) the signature is made or acknowledged by the testator in the presence of two or more witnesses present together at the same time; and
(d) each witness either attests and signs the will, or acknowledges his signature, in the presence of the testator (but not necessarily that of the other witness) ...
- Re Finn (1935) 52 TLR 153, Langton J
- An illiterate testator T dictated his will to a clergyman, who read it back to him. T then "signed" his will by making a thumbprint in ink (which was smudged because his hand slipped), and it was duly attested. The will was admitted to probate: the judge said this was no less a "signature" than a cross, though it was not something he would consider a good idea generally.
- Re Chalcraft [1948] 1 All ER 700, Willmer J
- An elderly and ill testatrix T began to sign her name at the foot of her will; she wrote "E. Chal..." but her strength then failed and she could not continue. The witnesses attested the will, and it was subsequently admitted to probate. T had intended what she wrote to be her signature, and was still "present" (mentally as well as physically) when the witnesses attested.
- Re Cook [1960] 1 All ER 689, Collingwood J
- A woman T wrote her own will by hand on two sheets of notepaper, addressing it to her children and signing it "Your loving mother". The will was properly attested, and in due course was admitted to probate: the words were intended to represent T's name and so constituted a signature.
- Re Coombs (1866) LR 1 P&D 302, Sir James Wilde
- T made a will, the text of which filled the first and third sides of a folded sheet. Since there was no room to sign at the foot of the third side, he signed (and the witnesses attested) on the second side near the fold, writing perpendicular to the other text. The judge admitted this as a valid will: T's intention to give effect to the will was clear, and the witnesses confirmed in evidence that the whole text had been written before the will was executed.
- Re Roberts [1934] P 102, Merriman P
- The text of T's will filled the page, and his and the witnesses' signatures appeared in the left-hand margin at right angles to the text. The judge applied Re Coombs and said the will had been duly executed.
- Re Harris [1952] 2 All ER 409, Willmer J
- T wrote at the top of a page "My last will and testament", and signed it immediately below; she then listed various dispositions. The judge refused to admit the will to probate: the signature was not at the end, and it was not otherwise apparent that T intended it to give effect to the document as her will.
- Wood v Smith [1993] Ch 90, CA
- T signed his name at the top of a sheet before writing any details of the dispositions, and subsequently acknowledged his signature before two witnesses. The Court of Appeal, reversing the trial judge, said that by writing "My will by Percy Winterbone" as he had, T clearly had meant to give testamentary effect to the dispositions which followed. The writing of the document, from the title and signature through the dispositions to the acknowledgement and attestation, had all been part of one operation, and the will had been validly executed.
- Smith v Smith (1866) LR 1 P&D 143, Sir James Wilde
- Two witnesses WW saw a testatrix T writing something on a piece of paper, but could not see what she was writing and did not know it was a will. WW subsequently attested, T having covered the writing (including her signature) while they did so. The judge said the will had been validly executed and attested: it was not disputed that what WW saw T write was in fact her signature, and it was sufficient that they had witnessed the act of writing.
- Re Benjamin (1934) 150 LT 417, Langton J
- A woman T left most of her estate to charity, and her relatives challenged the validity of the will. The facts were disputed, but the judge was satisfied that T's signature had been duly witnessed and attested. The fact that one of the witnesses said she did not know the document was a will was immaterial as long as she knew she was attesting to T's signature.
- Re Gibson [1949] 2 All ER 90, Pearce J
- A testator T made a codicil (an amendment to a will) attested by two witnesses, one of whom was blind. The judge said the codicil could not be accepted as valid: mere bodily presence was not enough, and a blind man could not be a "witness" to something he could not see.
- Weatherhill v Pearce [1995] 2 All ER 492, Times 7/11/94, Judge Kolbert
- A testatrix T wrote out her will by hand using a printed will form, writing at the bottom "Signed by the said Doris Weatherhill in the presence of ..."; there was no separate signature. She then called on two friends together, presented them with the document and asked them to witness it. The will was admitted to probate: the inclusion of her name (in her own handwriting) in the attestation clause was sufficient signature, and even though T had not expressly drawn the witnesses' attention to her signature just above the space for their own, she had clearly presented the document to them as her signed will: that was acknowledgement enough.
- Wyatt v Berry [1893] P 5, Gorell Barnes J
- A man T made a will and sought to have it attested by two workmates. He went first to W1 and acknowledged his signature, and W1 then attested. W2 was then called into the room, T and W1 each acknowledged their signatures, and W2 attested. The judge said the will had not been properly executed: both witnesses had not been present when T first acknowledged his signature.
- Re Colling [1972] 3 All ER 729, Ungoed-Thomas J
- A hospital patient T made a will and began to sign it in the presence of two witnesses. While he was signing, W1 (a nurse) was called away urgently, but T completed his signature and W2 attested. When W1 returned, T and W2 acknowledged their signatures and W1 then attested. The will was held to be invalid: T had not completed his signature in the presence of both witnesses, and his acknowledgement (which was in the presence of both) took place after W2 had already attested.
- Ross v Caunters [1979] 3 All ER 580, Megarry VC
- Solicitors DD drew up a will on T's instructions and sent it to him for execution; P's husband was one of the witnesses. DD had not warned T beforehand that this would invalidate the bequest to P, and did not notice anything when the will was returned to them for safe keeping. On T's death, DD told P the gist to her was invalid, and P sued successfully in negligence.
- Mette v Mette (1859) 164 ER 792, Sir C Cresswell
- T was German-born but British by naturalisation, He made a will during his marriage to W1, but shortly after W1 died he married W1's half-sister W2 in Germany (where such a marriage was lawful) and subsequently had children by her. When T died, his uncle sought letters of administration for the benefit of the children, arguing that the will had been revoked by the marriage to W2. The judge found that T had been domiciled in England at the time of the second "marriage", which (according to English law) was therefore void. Since it was void ab initio, it could not have revoked the earlier will, which therefore stood as valid.
- Re Roberts [1978] 3 All ER 225, CA
- A man T made a will under which D was a beneficiary. T subsequently married P, who claimed this marriage set aside the will and left her to take on intestacy. The Court of Appeal ruled in P's favour: even it it could be shown (as D contended) that T because of mental infirmity had not properly consented to the marriage, a merely voidable marriage revokes a pre-existing will and subsequent annullment does not revive it.
- Re Langston [1953] 1 All ER 928, Davies J
- T made a will leaving everything to "my fianc�e MEB", and married the woman in question two months later. The judge said T's choice of words clearly contemplated marriage to MEB, and the will therefore survived the marriage.
DISTRIBUTION ON INTESTACY
If the deceased person did not make a valid will (or made an incomplete will disposing of some but not all of his property), the intestacy rules in Part IV of the Administration of Estates Act 1925 (as amended) come into effect. Having paid the deceased debts and funeral and testamentary expenses, his personal respresentatives distribute the remainder of his estate according to these rules.
- If the deceased leaves a spouse, but no issue (that is, no children, grandchildren &c) and no "specified relatives" (that is, parents, whole brothers and sisters, and their issue), the spouse takes the whole estate absolutely. [Here, as elsewhere, children en ventre sa mere at the time of the death are taken into account, but no child acquires a vested interest until he or she reaches the age of 18 or marries under that age. Any share due to a minor child is held on trust until his interest vests; the trustees have power under ss.31-32 of the Trustees Act 1925 to make interim payments by way of maintenance or advancement, but if the child dies before his interest vests, the balance of his share is re-absorbed and re-distributed to the survivors.]
-
- If the deceased leaves a spouse and issue, the spouse takes:
- all D's personal chattels absolutely;
the fixed net sum (currently �125 000); and
a life interest in half the residuary estate;
-
- If the deceased leaves a spouse, no issue, but a "specified relative", the spouse takes
- all D's personal chattels absolutely;
the fixed net sum (currently �200 000); and
half the residue absolutely;
- If the deceased has no surviving spouse but leaves issue, the whole estate is divided among the issue (or held on trust) as explained below.
- If the deceased leaves no surviving spouse, issue or "specified relatives", the estate is divided among other more distant relatives, such as half-brothers and half-sisters, grandparents, uncles and aunts, and cousins. If none of these survive to achieve a vested interest, the Crown takes the estate as bona vacantia, but may in its discretion make provision for a cohabitee or any other person for whom D might reasonably have been expected to make provision.
The spouse
If the deceased leaves a surviving spouse, the spouse takes the first beneficial interest in the estate. Only a lawfully married spouse can inherit under the rules for intestacy; a divorced or judicially separated spouse (or one whose marriage was void from the beginning) is ignored altogether, as is a "common law wife" or other cohabitant.Personal chattels are defined in s.55(1)(x) of the 1925 Act and include horses and cars not used for business purposes, pets, housewares, plate, furniture, pictures, jewellery, instruments, and items of food and drink, but not items used (even partly) for business, nor money.
- Re Chaplin [1950] 2 All ER 155, Vaisey J
- The testator made a will leaving "all my personal chattels as defined in the Act" to his wife. Among his property was a 60-foot pleasure cruiser; the judge said this was an item of personal use and passed to the wife under the specific bequest.
- Re Crispin's Will Trusts [1974] 3 All ER 772, CA
- A testator T left "all my personal chattels as defined in the Act" to his sister. His estate included a �50 000 collection of clocks and watches that T had himself inherited a few years earlier and to which he had not added. The Court of Appeal said the collection should be included in the bequest: a clock is a piece of household furniture regardless of whether it is actually used as such, and no matter whether it is in the house, stored in a repository, or on loan to a museum. Similarly, a watch is an item of personal use, and a collection kept as a hobby and "cherished by eye and hand" comes even more clearly within that phrase.
The Second Schedule of the Intestates' Estates Act 1952 allows a surviving spouse to acquire any dwelling house belonging to the deceased in which she was resident at the time of his death (usually, but not necessarily, the matrimonial home), by taking this as part of her share. If its value is more than the "fixed net sum" she will be expected to pay "equality money" to the estate to make good the difference.
- Re Phelps [1979] 3 All ER 373, CA
- A man H died intestate, leaving the matrimonial home as part of his residuary estate. Its value was greater than the value of W's absolute interest as his surviving spouse, but she gave notice to H's administrators to transfer the house to her, offering to pay the difference in value. Foster J said W could not require such a transfer, but the Court of Appeal disagreed. As long as W made good the difference, the Act did allow her to insist on acquiring the house.
The issue
Subject to the interests of the spouse, as described above, the residue of the estate passes to the issue of the deceased: his children, grandchildren and any remoter descendants living or en ventre sa m�re at the time of his death; this includes illegitimate as well as legitimate children. Since the Adoption Act 1976 an adopted child is treated for the purposes of intestate succession as the legitimate child of its adoptive parents and as the whole brother or sister of their other adopted or natural children; its connection with its natural parents is wholly disregarded.All such issue (having reached 18 or married under that age) take in equal shares, except that no one takes anything whose relevant parent is still alive, and the living issue of a deceased child divide that child's share between them.
For example, suppose the deceased had three children A, B and C. A has died leaving two grandchildren D and E; B is alive with three children F, G and H; and C is childless. Each of A, B and C is entitled to one-third of the residuary estate, and B and C will receive this share. A's one-third is divided between D and E (who thus get one-sixth each). F, G and H get nothing: their rights would come only through B, who is still alive.
Other specified relatives
If the deceased leaves no issue who survive to acquire a vested interest, then (subject to the interests of the spouse) the residuary estate passes to the "specified relatives". These are the deceased's parents, or the deceased's whole brothers and sisters, or their issue. If either parent is alive they take everything (in equal shares if both survive). If not, the estate passes to the brothers and sisters or their issue, on the same principles as above in relation to the issue of the deceased.
FAMILY PROVISION
Although in principle a testator is free to dispose of his estate as he chooses, subject to taxes, the Court has power under the Inheritance (Provision for Family and Dependants) Act 1975 (which replaces a similar Act of 1938) to order that provision be made out of the estate for the close family and other dependants of the deceased. These powers exist no matter whether D dies testate or intestate, but are exercised only on application by or on behalf of a person entitled to have provision made. Application must be made to the Chancery Division or Family Division of the High Court, or to the County Court where D's net estate is under �30 000, within six months of the grant of probate or letters of administration.Provision under the Act can be made for the deceased's spouse, unmarried former spouse, or child, for anyone treated as a child of the family with respect to the deceased's marriage, for a cohabitant, or for any other dependant.
Standards of provision
The Court will order some provision to be made if it is satisfied that the disposition of the deceased's property made under his will, or under the intestacy rules, fails to make reasonable financial provision for the applicant. This is an objective test, depending on the provision actually made and not on what it would have been reasonable for the deceased to do in the light of his actual or supposed knowledge at the time. Moreover, reasonableness (or not) is judged in the light of circumstances at the date of the hearing, rather than at the date of execution or even the date of T's death.
- Snapes v Aram (1998) Times 8/5/98, CA
- T made a will in favour of his wife and five children DD, in which he made no provision for another daughter P; the value of his estate at the time of his death was assessed at about �200k. P sought provision under the 1975 Act, and by the time of the hearing (some ten years later!) the value of the estate had rised to about �700k because of the sale of a plot of land for commercial development. Affirming the judge's order for maintenance of �3k a year, Butler-Sloss LJ said s.3(5) required the court to consider the circumstances as they were at the time of the hearing.
- first, to satisfy itself that the testamentary and statutory dispositions fail to make reasonable financial provision for the applicant;
- second, if thus satisfied, to decide what provision (or what further provision) should be made for the applicant to reach that reasonable level.
The maintenance standard, applied to all applicants except current spouses, is provision such as it would be reasonable in all the circumstances for the applicant to receive to maintain himself in a manner suitable to those circumstances. This falls somewhere between a mere subsistence level and the level of provision which the applicant might (even reasonably) desire.
- Re Coventry [1979] 3 All ER 815, CA
- A man H died intestate, leaving a wife W and a 46-year-old son S. W had not lived with D for nearly 20 years; S and his family had lived rent-free in D's house, with S paying many of the household expenses and S's wife doing most of the domestic duties. S's marriage had failed and his wife and children had moved out shortly before H's death. On H's death, his whole estate passed on intestacy to W, then aged 74 and living on her state pension. S applied for provision to be made for him under the 1975 Act; Oliver J refused and the Court of Appeal dismissed S's appeal. Whether reasonable financial provision had been made was a question of objective fact to be determined by the judge, and not to be disturbed on appeal unless the judge had clearly erred in principle. In the instant case, the judge had properly decided that there was no special circumstance such as a moral obligation on H to provide for S making the lack of provision unreasonable; the mere fact that S found himself in financial difficulties was not sufficient. Proper maintenance, said Goff LJ, does not mean just enough to enable an applicant to get by on, but nor does it mean anything which may be regarded as reasonably desirable for the applicant's general benefit or welfare. A Canadian court had suggested that it meant "sufficient to enable the dependent to live neither luxuriously nor miserably, but decently and comfortably according to his or her station in life".
- Re Dennis [1981] 2 All ER 140, Browne-Wilkinson J
- A father F gave his son S a gift of �90 000 and other sums of money, which the son spent on wild living. When F died, he left S (now aged 38) a legacy of �10 000 duty free and gave �30 000 to the trustees of a protected trust for S, but left the rest of his estate elsewhere. S, who was unemployed and had no other capital or income, sought provision under the Act, claiming he was unable to pay the capital transfer tax on the lifetime gift (about �50 000) and would be made bankrupt. The judge refused, saying the payment of tax debts could not be regarded as maintenance.
- Re Abram [1997] 2 FCR 85, Judge Cooke
- A wealthy woman T died leaving most of her money to charity, and her son S applied for reasonable provision. S had worked in the family business for many years at a low wage, expecting to take it over in due course; a few years before T's death S had left the business through force of circumstances and was now bankrupt. The judge ordered provision to be made for S to take a life interest in half the estate on protected trusts, giving him an income of about �10k a year.
Points to consider
In determining whether the existing disposition makes reasonable provision, the Court is required by s.3(1) of the Act to have regard to a number of general matters, namely[a] the financial resources and financial needs which the applicant has or is likely to have in the foreseeable future,
[b] the resources and needs similarly of any other applicant, and
[c] the resources and needs similarly of any beneficiary under the will or the intestacy rules, bearing in mind in each case the person's earning capacity, capital resources and expectations;
[d] the deceased's obligations (moral as well as legal) and responsibilities towards any applicant or beneficiary,
[e] the size and nature of the deceased's net estate, the courts being disinclined to order any provision that will do no more than reduce social security payments and wishing in any case to discourage applications where the whole estate is likely to be eaten up in costs;
[f] any physical or mental disability of any applicant or beneficiary, particularly where this affects his needs and/or earning capacity; and
[g] any other relevant matter, including particularly the conduct of the applicant or of any other person.
There is no express requirement that the Court consider the deceased's wishes nor his reasons for disposing of his property as he did: if his reasons were good ones the Court may take them into account under this or another subsection, and if not will disregard them anyway.
- Re Joslin [1941] 1 All ER 302, Farwell J
- A man H left his wife W after 20 years' marriage and went to live with his mistress M, by whom he later had two children. He paid maintenance regularly to W (who had no surviving children), but when he died he left his entire estate (worth about �400) to M. W applied for provision to be made for her under the Inheritance (Family Provision) Act 1938, which was similar to the 1975 Act in all relevant respects, but her application failed. In these circumstances, said the judge, the testator had to choose between his moral obligations to M and her children and his obligations to his wife; since W had some means of her own and M had none, H's choice could not be faulted.
The spouse
The surviving spouse of the deceased is potentially eligible for a standard of provision higher than that accorded to any other applicant, though if the deceased and the spouse were separated this higher standard applies only at the Court's discretion. The description of "spouse" covers not only a legal spouse but also a partner in good faith of a wholly void or voidable marriage (unless during D's lifetime the marriage was formally annulled) and any of the several wives of a polygamous marriage
- Re Sehota [1978] 3 All ER 385, Foster J
- H and W were married in India in 1937, and in 1948 H married X, polygamy being permitted by Indian law. H, W and X all subsequently moved to England, and in 1976 H died leaving all his estate to X. W sought reasonable provision under the 1975 Act, and the judge said she should succeed. A wife of a polygamous marriage was still a wife for the purposes of the Act; obiter, if H had left his estate to charity, both W and X would have been entitled to apply as surviving spouses.
[a] the applicant's age and the duration of the marriage,
[b] the applicant's contribution to the welfare of the deceased's family, and
[c] the provision the spouse could have expected had the marriage been ended by divorce rather than death, typically between one-third and one-half of the whole estate.
- Re Besterman [1984] 2 All ER 656, CA
- A widow W applied for further provision to be made from the estate of her husband H, who had left her only the personal chattels, a small block of stock, and �3500 per annum, out of a net estate of �1�m. She had been a faithful wife for eighteen years and was now 66 with no income of her own except a small pension. Oxford University (the main beneficiary) conceded that H's provision for her was not reasonable provision for a millionaire's widow accustomed to a high standard of living, and the trial judge awarded a lump sum sufficient to buy an annuity sufficient to maintain her former standard of living. The Court of Appeal said this was insufficient: she would have received about �350k on divorce, and an award of �378k would provide for her maintenance and allow a capital reserve in case of illness or any other contingency.
- Re Snoek [1983] Fam Law 18, Wood J
- A man H died leaving an estate of �40 000 to his children, with nothing for his wife W. W claimed the entire estate as "reasonable provision" for herself under the 1975 Act. Evidence was given of W's "atrocious and vicious" conduct towards H, particularly in the later years of the marriage: inter alia, she had hit him with a bottle, punctured the tyres of his car, and written abusive letters to his friends and business colleagues. Setting this against her earlier work in homemaking and raising the children, the judge awarded her just �5000 from the estate, in addition to shares worth �13 000 which the children were determined to give her from their own legacies.
- Kusminow v Barclays Bank [1989] Fam Law 66, Brown P
- A Russian H and a Pole W were married but childless and lived in England. H made a will leaving all his estate to a niece and nephew living in poverty in Russia, and subsequently died. W (who still lived in the couple's rented flat, and who had a retirement pension and savings of some �20k) sought reasonable provision. The judge ordered that W receive �45k, slightly under half the joint assets. Although the "divorce test" was relevant, the niece and nephew were also in need, and W's assets when she died (she was now 78) would probably go out of the family altogether.
- Re Moody (Moody v Stevenson) [1992] 2 All ER 524, CA
- A woman W owned a house (a gift from her mother) in which she lived with her husband H and her stepdaughter D. D moved out when she herself married, but remained in contact with W. After H died, W married M, and thereafter W and M lived together in W's house until W became senile and had to be moved into a nursing home. About this time W made a will leaving her entire estate (consisting mainly of the house) to D; her mental capacity to make the will was not contested then or later. When W died, D sought possession of the house (in which M was still living), and M cross-applied for reasonable provision from W's estate. The judge dismissed M's application, saying he had adequate means of his own, but the Court of Appeal disagreed. The intention of the 1975 Act was that the acceptable minimum provision for a surviving spouse should correspond as closely as possible to the inchoate rights enjoyed by that spouse under matrimonial law. Applying that test, M was entitled to some provision out of W's estate and should be allowed to continue living in the house as long as he was willing and able to do so.
- Davis v Davis [1993] 1 FLR 54, CA
- A man T made a will shortly before his death, leaving most of his substantial estate to trustees TT with a life interest to his wife W. TT bought a house for W to live in, but W sought the transfer of the freehold. Her application failed: the judge had found that the will provided W with a reasonable income for her maintenance and TT had ensured she was properly rehoused, and the Court of Appeal saw no reason to disturb his finding that this was "reasonable provision".
- Re Krubert [1997] Ch 97, Times 16/7/96, CA
- H and W were childless and lived in a house owned by H only. H's will left W the personal chattels, a lump sum of �10k, and the right to remain in the house for life; the residue (including the house) went to trustees on a life interest for W and thereafter to H's brother and sister. When H died W, now 87, applied for provision under the 1975 Act. The judge ordered that the house and most of the residue go to W absolutely, but the Court of Appeal reversed this in part and ordered that W have a life interest in the house and the rest absolutely. The "surviving spouse" standard (rather then the "maintenance" standard) should be applied, but W had not shown any financial need for an absolute interest in the house.
The former spouse
D's former spouse under a marriage which has been dissolved may apply as of right for provision under the maintenance standard, provided he or she has not remarried. Where the death occurs within twelve months of the decree absolute, and no final property settlement has yet been made on the dissolution, the Court has a discretion under s.14 to apply the surviving spouse standard as if the marriage were still in existence. The particular matters in [a] and [b] above are then considered along with the general matters listed earlier and the financial provision (if any) made in connection with the divorce.
- Re Fullard [1981] 2 All ER 796, CA
- A 38-year marriage ended in an amicable divorce, and W bought out H's share of the matrimonial home from her own savings. H then died worth some �7000 (more than half of which had come from W's purchase of the house), leaving his estate elsewhere, and W sought provision under the Act. The Court of Appeal said it was unreasonable in the circumstances for W to expect any further provision. The estate consisted largely of the payment she had made, and if she had been unhappy with the settlement she should have sought a court order at the time. Obiter, since the court dissolving a marriage has power to order the transfer of capital sums and other property, it will be only rarely that a former spouse is eligible for any more under the 1975 Act. Such applications are likely to succeed only where the ex-spouse is still receiving regular maintenance payments, or where the death produces a substantial sum for the estate, as for example under an insurance policy.
Children
Any child of the deceased, including an adopted child, an illegitimate child, or a child en ventre sa m�re, is eligible to apply for provision under s.1(1)(c) of the Act. In considering such an application, s.3(3) requires the Court to consider not only the general matters above but also the manner in which the applicant was being (or might have expected to be) educated or trained. An adult child is eligible to apply, but is unlikely to succeed unless he or she was financially dependent on the deceased.
- Re Debenham [1986] 1 FLR 404, Ewbank J
- A woman W had an unwanted daughter D, with whom her relationships were never good. As an adult, D developed epilepsy to a degree that made it hard for her to find suitable work, and her husband was also disabled. W died leaving an estate of �172 000; she left �200 to D (now aged 58), and most of the rest to various charities. D applied for provision under the Act. The judge said W had no obligation towards the charities and no legal obligation to D, but did have a moral obligation towards her daughter in view of D's disability. He therefore ordered provision to be made of �3000 in capital to meet D's immediate needs, together with �4500 per annum for the rest of D's life.
- Re Coventry [1979] 3 All ER 815, CA
- The facts are set out above. At trial, Oliver J said obiter that successful applications by able-bodied young men in employment would be rare: had S given up work to devote himself to his father he might have had a moral claim. [This decision may be seen as harsh compared with the courts' generosity to children and stepchildren in other cases: although an adult, S had been living with his father and would now find himself homeless.]
- Re Collins [1990] 2 All ER 47, Hollings J
- A couple separated and their two children remained with the mother M. When she died the children were taken into care, and the 8-year-old son was then adopted; his subsequent application for provision from M's estate was dismissed; the entire estate of �35k (except for provision of �5k made to an unemployed 17-year-old daughter) went on intestacy to M's ex-husband whose divorce had not been made absolute at the time of M's death.
- Re Jennings [1994] 3 All ER 27, CA
- P's parents divorced when P was two years old, and thereafter his father T had no contact with P, nor did he contribute to his maintenance. T died forty years later with no dependants, leaving the bulk of his estate to various charities. P (who had a steady job but no savings) sought provision to enable him to pay off his mortgage and begin a pension fund, but the Court of Appeal said he was not entitled to anything. He did not need any provision for his maintenance, and the reference in s.3(1)(d) to obligations referred only to those subsisting at the time of T's death, not those undischarged from many years earlier.
- Re Goodchild [1997] 3 All ER 63, CA
- H and W1 each made wills in similar terms, leaving their property to one another or to their son S, then aged 50. When W1 died H inherited her property; a year later H remarried and made a new will leaving all his estate to his new wife W2. A year later again H died leaving about ��m altogether, and S claimed the estate on the basis of mutual wills. The judge rejected this claim, since there was no evidence of an agreement between H and W not to alter their wills, but ordered that S receive reaonable provision of �185k. S's appeal and W2's cross-appeal both failed: Leggatt LJ said H had a moral obligation to leave to S what he had received from W1.
Stepchildren
The 1938 Act allowed provision to be made only for a spouse, a former spouse, or a minor child of the deceased: this category and the next were added by the 1975 Act on the recommendation of the Law Commission. Section 1(1)(d) allows an application to be made by a person other than a child of the deceased who was treated as a child of the family in relation to any marriage to which the deceased was at any time a party: that is, normally, by a step-child treated by the deceased as if he were his own. Note the requirement of a marriage, which excludes from this category any children brought up by an unmarried couple or (for example) by a widowed grandparent.Section 3(3) says that the Court in considering an application under this heading should consider (in addition to the general matters above)
[a] the manner in which the applicant was being or might have expected to be educated or trained;
[b] whether (and to what extent) the deceased had assumed responsibility for the applicant's maintenance;
[c] whether in assuming this responsibility the deceased knew the applicant was not his own child; and
[d] whether (and to what extent) any other person is responsible for the applicant's maintenance.
- Re Callaghan [1984] 3 All ER 790, Booth J
- The applicant A was 35 and living in his own home when his mother remarried, but his stepfather F treated him as a child of the family (albeit an adult child) by playing the role of grandfather to A's children, confiding in A in financial matters, and relying on A to care for him in his last illness. When F died intestate (his heirs being two sisters whom he had not seen for 20 years), A sought provision from F's estate. The judge allowed the application, noting particularly that most of F's assets had come from A's mother and (via her) from A's paternal grandfather.
- Re Leach [1985] 2 All ER 754, CA
- An unmarried stepdaughter A, aged 55, applied for provision to be made out of her widowed stepmother M's estate. A had been a frequent visitor to her father's home, and following his death she and M had become close, confiding in one another and becoming emotionally involved as mothers and adult daughters do. A had had her own key to the house, and one of the bedrooms was known as "Joan's room". M had told A that she intended A to have half the house on her death, but died intestate leaving A with a considerable mortgage on her own property. The court held that A was eligible for provision to be made under the Act. But obiter, the mere fact of having been a step-child was not in itself enough.
Cohabitants and other dependants
The second and more controversial addition in the 1975 legislation extended eligibility for provision to other dependants of the deceased, so earning it the name of "the mistresses' charter". This is clearly an important extension in modern times when so many couples live together in stable relationships without the formalities of marriage, but it is by no means limited to cohabitants.Section 1(1)(e) of the 1975 Act allows an application to be made by any person who immediately before the deceased's death was being maintained wholly or partly by the deceased, and s.1(3) explains this as meaning that the deceased (other than for full valuable consideration) was making a substantial contribution in money or money's worth towards the applicant's reasonable needs.
- Re Beaumont [1980] 1 All ER 266, Megarry VC
- M and W lived together in W's house for some 40 years. M paid for his accommodation. contributed to the weekly shopping bill, did various odd jobs around the house, and provided a car for their joint use, on which he paid most of the expenses. W paid the outgoings on the house and did the routine housework. Each of them had nursed the other in sickness, though W went into hospital shortly before her death. When W died leaving her estate to her sisters, M sought reasonable provision as a dependant under the 1975 Act, but his claim was struck out as showing no reasonable cause of action. It was not maintenance at the moment of death that mattered, said the judge, so much as the ordinary state of affairs at that time. But the reference to "full valuable consideration" was not limited to contractual consideration, and since M gave as much as he received, his claim that he was being maintained must fail.
- Jelley v Iliffe [1981] 2 All ER 29, CA
- A widower A and a widow W lived together in W's house: they pooled their pensions and savings to meet household expenses, and A did the gardening and various odd jobs around the house. When W died leaving everything to her children, A sought reasonable provision from her estate. In interlocutory proceedings the Court of Appeal said it doubted whether A could show on the facts that he was being maintained by W, but (doubting the decision in Beaumont) there was a real issue to be tried. A was in fact being maintained (by W's provision of accommodation), and this gave rise to a presumption that W had assumed responsibility for such maintenance.
- Bishop v Plumley [1991] 1 All ER 236, CA
- A woman A lived with an elderly man M and supported and cared for him until his death. When M died leaving his estate to his children, A applied successfully for reasonable provision to be made for her. M had made a substantial contribution to A's maintenance (by providing a secure home), said the court, and A's tender loving care could not be regarded for this purpose as full valuable consideration. Parliament could surely not have intended, said Butler-Sloss LJ, that a cohabitant who gave extra love and care should be treated less generously than one who did not.
- Bouette v Rose (2000) Times 1/2/00, CA
- A mother P who looked after her brain-damaged daughter X full time from X's birth until her death at age 14 was held to be financially dependent upon X. She was thus entitled to reasonable provision from X's estate (consisting of �33 000 that remained from �250 000 damages awarded for the medical negligence that led to her condition) following X's death, before the residue was divided equally according to the intestacy rules between P and the child's father D (who had left shortly after the birth).
- Graham v Murphy [1997] 1 FLR 860, Robert Walker J
- M and W cohabited for 18 years, recently in houses owned by W. For four years before W's death she was seriously ill and M cared for her. On W's death, M (whose own income was about �160 pw) sought reasonable provision: having lived in W's house he was clearly a dependant, and the judge awarded him �35k to enable him to buy a modest house elsewhere with the aid of a mortgage.
- Re Watson (1998) Times 31/12/98, Neuberger J
- A woman P, now aged 67, had lived with a man X for ten years, doing domestic chores without payment, but not in a sexual relationship. When X died intestate leaving some �200k (claimed by the Crown as bona vacantia) P sought "reasonable provision" and was awarded a lump sum of �24k, or �2500 a year for the rest of her life. The judge said marriages, like other human relationships, can vary in many ways, and he was satisfied that P had lived with X "as his wife".
Possible orders
The Court has extensive powers under various sections of the Act to make orders as it thinks fit for regular payments, for a lump sum payment (perhaps payable by instalments), or a transfer or settlement of a house or other property forming part of the estate, or which the Court may order to be acquired for this purpose.The Court may in any case make such supplementary orders as may be necessary (for example, to ensure that the provision is not taken entirely from the residue). The Court's orders become for all practical purposes (such as intestacy or inheritance tax) part of D's will operative from the date of his death. The Court can make an interim order in favour of an applicant in immediate need of financial assistance, where property is available for this purpose but no final order can yet be made.
If the Court is satisfied that a testator (or rarely, an intestate) disposed of property within six years of his death, or entered into an enforceable contract to leave specific property in his will, with the intention of defeating an application for provision, and otherwise than in exchange for full valuable consideration, it has the power to make an anti-evasion order requiring any such recipient of D's property to make that property (or an equivalent sum in money) available for the purpose of making financial provision for the applicant. The recipient cannot escape such an order merely by disposing of the property before D's death, though the Court will take his resources into account in deciding whether or not an order is appropriate.
- Re Dawkins [1986] 2 FLR 360, Bush J
- A recently remarried man H sold his house to his daughter D (by a previous marriage) for �100, intending to defeat the provisions of the Act. H also made a will leaving all his remaining property (worth comparatively little) to D. On H's death, his wife W applied for provision and an anti-evasion order. D (who had already sold the house for �27 000) was moderately well off in any case, while W was ill and very poor; the judge ordered D to provide �10 000 out of the proceeds of sale for W's future maintenance.
- Re C (Leave to Apply) [1995] 2 FLR 24, Wilson J
- A man T was killed in an accidents, leaving inter alia an illegitimate daughter C, then aged eight. 2� years later C's mother (who had known of T's death almost at once) sought leave to apply out of time for reasonable provision to be made for C. The judge granted leave: although probate had been granted, no distribution of capital had been made, and if leave was refused C (who had a good arguable case) would suffer through her mother's fault.
