Victory for disinherited daughter in claim against her father's estate

Most people believe that they have the right to leave their estate to whoever they choose. For the most part, that is correct, but recent case law shows that it may not be so easy to disinherit children.

The recent County Court case of Elena Alicia Nahajec v Stephen Fowle [2017] EW Misc 11 (cc) concerning a disinherited adult daughter's claim under the Inheritance (Provision for Family and Dependants) Act 1975 ('the 1975 Act'), provides an interesting case, comparable to the landmark Supreme Court decision in Ilott v The Blue Cross & Ors earlier this year.

The case of Ilot was notable, in part at least, for being a successful claim by an independent, employed, adult child expressly excluded from her mother's Will. She was eventually awarded £50,000 from her mother's Estate, which translated to 10.3% of the net value of the estate. This was a significant reduction to the amount previously awarded to the daughter by the Court of Appeal (for which see our previous article here). There were, for the purposes of this article at least, two clear factors in that claim that led the Court to fly in the face of the mother's express testamentary wishes: the daughter's poor financial circumstances and the mother's ostensibly unreasonable willingness to reconcile with her daughter. 

However, it was not clear to what extent this so called landmark decision would impact on claims by adult children (the decision was highly fact specific) going forward.

The Nahajec case suggests the beginning of a trend, started by Ilot, in independent adult children claims, where the courts will give particular consideration to financial circumstances and reconciliation attempts in determining whether to make an award in favour of the Claimant. 

Facts of the case

Stanley Nahajec died in 2015, leaving three children, two sons from his first marriage and a daughter from his second marriage. His Will bequeathed his entire estate to a friend. The accompanying letter of wishes stated:

'In my said will I have made no provision for either of my sons or daughter.

I have not seen or heard from any of my children in the last 18 years and I do not believe they have any interest in me or my welfare.

All of my children are of independent means…and are, to my knowledge, sufficiently independent of means not to require any provision from me.

In the circumstances I do not feel it appropriate or necessary to make any provision for them in my will and trust that in this regard you as my executor will respect my wishes and ensure that they receive no benefit whatsoever thereunder.'

One of the Deceased's sons, Mr Mark Nahajec, made a claim under the 1975 Act. Mark was unable to work due to ill health and disability. The claim settled out of court for the sum of £22,000.

The Deceased's daughter, Elena ('the Claimant') brought a claim against the estate under the 1975 Act that her late father's Will failed to make reasonable financial provision for her.

The Claimant was 31 years old. The Deceased and her mother separated when she was 11 years old. There was no relationship between the Deceased and the Claimant until the Claimant made contact with the Deceased in 2007. They rekindled their relationship until 2009 when the Deceased cut himself off from Claimant as he disapproved of her boyfriend. 

It was the Claimant's position that she had tried to contact the Deceased to re-establish the relationship but all attempts were rejected by the Deceased. The Claimant's half-brother (who did not make a claim against the estate) provided evidence which corroborated the Claimants efforts of trying to resume contact with the Deceased.

The Claimant had some debts – excluding these she could meet her outgoings from her income from two jobs and tax credits. The Claimant wished to complete a veterinary nursing course and had shown some commitment to this intention by undertaking both paid and unpaid hours to gain experience at a veterinary surgery.

The decision

In exercising its decision in 1975 Act claims, the courts must consider and balance all the factors set out in Section 3 of the 1975 Act. This includes:

  • the financial resources and needs which the Claimant and other beneficiaries have or are likely to have in the foreseeable future
  • any obligations/responsibilities the Deceased had toward the Claimant or any beneficiary
  • the size and nature of the net estate
  • any physical or mental disability of the Claimant or beneficiary
  • any other matter including the conduct of the parties.

The Court awarded the Claimant £30,000 from her father's Estate. 

In reaching its decision, the Court referred to comments made by Lord Hughes in the Ilott judgment that in the case that an adult child capable of living independently 'something more than the qualifying relationship is needed to found a claim… Clearly, the presence or absence of a moral claim will often be at the centre of the decision under the 1975 Act'. 

As to whether there was "something more than a qualifying relationship" in this particular case, the Court placed significant emphasis on his following findings:

  1. the Claimant was leading a rather frugal existence with only occasional and modest expenditure
  2. the Claimant wished to study to qualify as a veterinary nurse
  3. there was no relationship between the Deceased and the Claimant but that it was not for the want of trying on the Claimant's behalf. The Claimant "appeared to have a father who was stubborn and intransigent", which was not her fault.  

Whilst the Letter of Wishes left by the Deceased had to be a factor to which the judge had to have regard, he commented that "the fact that a deceased explained his reasons for leaving his estate as set out in his will does not mean that the resultant provisions in the will are necessarily reasonable" particularly when the reasons provided "include a probable misunderstanding of the Claimant's financial position".

Conclusion

Two key points can be taken from the case of Nahajec in the context of the Ilot decision:

  1. The parties' attempts at reconciliation will be a key factor alongside the claimant's financial circumstances in determining whether to make an award to an independent adult child under the 1975 Act.
  2. Awards in 1975 Act claims are notoriously inconsistent and virtually impossible to predict, but it is worth noting that the award in Nahajec equated to 11.3% of the net value of the estate, which was within 1% of the award in Ilot.  It will be interesting to compare those awards with awards in cases in the future to see if this is simply chance, or an indication of what adult children might expect to receive in claims under the Act.

If you require further advice on making a claim under the 1975 Act please contact Lisa Benham in our Disputed Wills and Trusts team.