The Act that enables a child of the deceased to make a claim against his or her estate in circumstances whereby the deceased did not make reasonable financial provision for them in their Will (or by intestacy) is called The Inheritance (Provision for Family and Dependants) Act 1975 (“the 1975 Act”)
A child of the deceased could include an illegitimate, legitimated and adopted child, of any age. AND any person treated by the deceased as a child of the marriage or civil partnership.
In recent years the courts have seen increased claims under the 1975 Act by adult children. Under Section 3 of the 1975 Act, the court will take into account the following factors when deciding whether there is a reasonable financial provision granted for a claimant:
- The financial resources and needs of the applicant
- The financial resources and needs of any other applicant
- The financial resources and needs of the beneficiaries
- Any obligations and responsibilities of the deceased towards any applicant and any beneficiary
- The size and nature of the estate of the deceased
- Any physical or mental disability of any applicant or beneficiary
- Any other matter, including conduct, which the court may consider relevant.
If a child is to be excluded from an estate, full explanation as to the reason why the exclusion is taking place should be recorded.
In reality, claims by excluded adult children are difficult. Adult children living at home and those that are financially dependent on a deceased parent will always stand a better chance of success than those that maintain themselves financially. However, it will be fact sensitive in every case and depend on the above factors.