Failure To Provide Reasonable Financial Provision In Your Will For A Spouse

When a spouse or civil partner dies they often leave a Will which provides who should benefit from the estate and how their assets are to be divided amongst their beneficiaries.

The estate can include a range of assets including the deceased’s interest in the property, money, and personal possessions. Although it is the testator’s choice as to how their estate is distributed when they die, in some cases the Will of the deceased does not provide reasonable financial provision for their spouse or civil partner who survives them.

Where a surviving spouse or civil partner has not been reasonably provided for in a Will, there is action they can take in certain circumstances to seek provision from the estate. Section 1 of the Inheritance (Provision for Family and Dependants) Act 1975 (Act) sets out who is entitled to pursue a claim against a deceased person’s estate. Under section 1 a surviving spouse or civil partner is one of a number of categories of individuals who are entitled to pursue a claim under the Act.

Section 4 of the Act does however draw a line in the sand over the timing of such a claim. Any claim under the Act must be issued at Court within six months of the date of the grant of representation. The grant of representation is the document obtained from the Court that gives the person named as an executor the authority to deal with the deceased’s estate. A claim must be brought within this time limit or it will be time-barred under the Limitation Act 1980.

What will the Court consider?

The Court may make an order that the estate will provide for the Claimant in a way that is appropriate for the Claimant’s maintenance, and has wide discretion as to the type of order. Claims by children and cohabitants tend to be limited in amount unless they have a very enhanced level of need or a serious disability.

The outcome is not quite the same for surviving spouses or civil partners, however, In such cases, the Court’s approach is similar to the approach taken by the Court when dealing with ancillary relief as part of a divorce, in that the Court’s starting point is that each party should receive equal shares. One reason for this is that prior to the death of the spouse or civil partner that mortgages, bills, and other costs are split between the two individuals however, on the death of one of these individuals the cost falls to the survivor. However, the Court has the discretion to award more or less depending on other factors.

P v G [2006] 1 FLR 431

Background

In the case of P v G, P died and his widow subsequently pursued a claim that P’s Will did not make reasonable financial provision for her. P left 50% of his pension to his wife and the Court held this would not constitute a reasonable provision for her. The joint income of the household prior to the death of P was in access of £300,000 per annum. The widow’s future annual income from the pension provision was calculated at £90,173 net.

The Court ordered a payment of £2 million to the widow by the estate, which included the former matrimonial home worth £900,000. This seems quite a generous outcome, but the Court did make a point of the fact that under section 3(2) of the Act, the Court must look at the position that might have been had the couple divorced. The Claimant was used to a fairly affluent lifestyle and the award she obtained enabled that to continue.

This contrasts significantly with claims under the Act by adult children, who must normally demonstrate financial need and/or reliance on the deceased in order to succeed in obtaining provision. In Ilott v Mitson [2017] UKSC 17, the Claimant did demonstrate financial need but only ended up (after the case was appealed twice) with £50,000 from an estate worth around ten times as much. In Miles v Shearer [2021] EWHC 1000 (Ch), three adult children ended up with nothing because they could not demonstrate a maintenance need and their late father had excluded them from his Will due to them receiving a substantial gift from him years before.