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Whilst the courts still emphasise the importance of testamentary freedom – the right to leave your estate to whoever you choose - an increasing number of disinherited adult children bring claims against their deceased parents' estate pursuant to the Inheritance (Provision for Family & Dependants) Act 1975.
The parents' failure to make adequate provision for them is usually the catalyst for these actions. The act aims to provide maintenance and make reasonable provision for a child who successfully establishes their case, and not for enrichment purposes.
In the recent case of Fennessy v Turner & anr [2022] WTLR 1295, Mr Fennessy, the claimant, received an award at first instance from the estate of around £195,000 under the Inheritance (Provision for Family and Dependants) Act 1975, following a trial. The award included Mr Fennessy's claim for provision, incorporating his income deficit and the success fee attracted by the Conditional Fee Agreement funding arrangement that he entered into with his solicitors. There was also a punitive costs claim against the defendant since Mr Fennessy had made an entirely reasonable Part 36 offer, which the defendant had failed to beat. The defendant, Mrs Turner, appealed but this was subsequently dismissed by the High Court.
Some important points were raised on the facts of the case, which are important to bear in mind when considering the merits of a claim brought by an adult dependant. The High Court said that deference to the trial judge was entirely appropriate, given they had heard all of the evidence, making them best placed to arrive at a decision in respect of the claim. Whilst the appeal judge felt the award made by Recorder Cameron was "generous", he suggested this was not beyond a "generous ambit" and there was thus no basis for the appellate court to set it aside.
Interestingly, the appeal judge also found that promises made to
an adult child by a parent do not need to be particularly clear to
form the basis of a moral claim. The trial Judge found that the
deceased had made promises to Mr Fennessy, which would give rise to
a moral claim. However, the underlying point made by the appeal
judge was that a moral basis for bringing a claim did not
necessarily need to be a pre-requisite.
The key element of testamentary freedom was also explored by the
appeal judge who found that testamentary freedom was "baked
into" the Inheritance Act and there was "nothing to
elevate testamentary wishes to greater importance" when
compared to other factors which need to be taken into
consideration.
The success of Mr Fennessy's claim, the level of award and the appeal judge's comments are a real wake up call to those seeking to defend wills based on the principles of testamentary freedom and by assertion that a lack of moral obligation defeats the claim. It highlights to practitioners the importance of assessing the merits of a claim from the outset and seeking to achieve resolution without incurring both the time and expense of proceedings. Mediation is key and the focus of the ACTAPS Code further underlines this point. Whether you are representing a claimant bringing a claim or a defendant potentially defending a claim, it is imperative to be mindful of the litigation risks of dismissing a claim on the basis of principles, which in the case of Mr Fennessy's claim proved to be an extremely costly exercise.
Originally published 9 February 2023
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
