Adult Children’s recovery from Estranged Parent’s or Parents’ Estates – the growing reluctance to award compensation to an Adult Child
Adult children can claim against their parent’s or parents’ estate if they are not reasonably provided for under the Inheritance (Provision for Family and Dependants) Act 1975. However, judges are reluctant to award compensation unless they have obvious needs. Indeed, even in cases where an award is made, including the leading case of Ilott v Mitson [2018] AC 545, they stress that simply being a child is “not always enough”.
In Miles & Shearer v Shearer [2021] EWHC 1000 (Ch), the judge found that the children’s need for maintenance was not such as to require an award. This was despite a £2.2m estate and one daughter having a disabled child, which the judge acknowledged was a financial responsibility that should be taken into account. In this case the widow gave convincing evidence, even quoting that “sharper than a serpent’s tooth is an ungrateful child” (King Lear). The fact that both daughters had been well provided for during their father’s lifetime and their characters were referred to in the decision.
A similar result is seen in the case of Wellesley v Earl Cowley [2019] EWHC 11. Here there was an estate of £1.3 million, the daughter suffered a psychiatric condition, was on benefits, in a council flat and had a son with Special Needs. Despite that, Deputy Master Linwood took an unfavourable view of the Earl’s daughter, concluding that her “conduct in terms of her responsibility for the extremely long estrangement for almost all of her adult life, with no reconciliation in sight, outweighs all of the factors in her favour”. Whilst there did appear to be some evidence of her unreasonable behaviour in that respect, the judge did not appear to be sympathetic to the fact that the deceased left his daughter when she was aged three, to be brought up by a schizophrenic alcoholic mother for eight years, until she was placed into care.
Compare that to the case of Re H (Deceased) [2020] EWHC 1134 (Fam), heard in the Family Division in May 2020. Here the 80 year old surviving widow was cast in a bad light through failing to comply with orders and the tone of her communication. The daughter was able to establish a manifest need, again being reliant on benefits and suffering from psychiatric problems. Yet even here, despite no real opposition, the claimant was unable to succeed in a claim for housing needs. Furthermore, although she was able to recover the costs of psychotherapy the award was problematic. Her award was made up of:-
- £17,000 for psychotherapy;
- An income shortfall of £1,338 per month for three years;
- Substitution of her Universal Credit, which the lump sum would disentitle her to for three years;
- £15,000 for replacement of white goods and upgrade of car;
- £10,000 towards a deposit for private accommodation; and
- A sum of £16,750 for a reasonable CFA mark-up.
Items 1 and 2 were perhaps self-explanatory and expected. However, how the period of disqualification from benefits seems to be based on income not capital. It is doubted that the Benefits Agency will not simply reinstate Universal Credit after the three years supplementary income. It is more likely that the Benefits Agency will assess the £138,918 award as capital and apply the nominal income rules. This in effect deducts from that capital a nominal weekly sum similar to the Universal Credit award and only allows for benefits to be reinstated after the nominal rate of capital has been reduced to £16,000. In practice, that could be nearer six or seven years in this case. Had the solicitors requested a discretionary trust, which would have ring fenced the capital from means tested benefits, this problem might have been avoided. This was something that the courts will allow, as in the case of Challinor v Challinor [2009] 180 (Ch).
Another interesting feature of this case was the award of £16,750 to compensate for the success fee in the CFA. The basis of that element of the award was that the success fee was a future debt that should be considered. In this case the sum awarded was only a fraction of the actual success fee. It is thought that the reason being that there is a reluctance to make the success fee recoverable per se. This is doubtless something that will be referred to in the on-going appeal.
Conclusion
There is still considerable mileage in claims brought against estates for unreasonable provision relating to adult children. However, it is equally clear that proper advice and expert preparation of these cases is essential if the compensation is to amount to a life-changing award. It is no longer simply enough to set out a schedule of the client’s finances and possible needs. Advice must now also look at what a financial award would mean and how it should be applied. It is also necessary to present the claimant’s circumstances and their relationship with the deceased in a persuasive and sympathetic manner. Failure to do so can lead to an exposure to adverse costs orders.
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