Can a step child contest a will?

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Solicitor Chris Green answers a common question, ‘Can a step child contest a will?’

A step child is entitled to contest their step parent’s will (or if there is no will, the intestacy rules) by bringing a claim under the Inheritance Act and Chris has recently succeeded in such a claim, winning the case at trial.

Inheritance Act claims by adult children, particularly adult step children, are among the most controversial and bitterly contested cases brought under that piece of legislation.

In contrast to Inheritance Act claims made by young children under the age of 18, whose dependency on their parent’s estate is rarely contested, claims made by adults face a much tougher test. Children (including step children) do not have an automatic right to financial provision from their parent’s estate. Instead, they have to demonstrate a need for financial support and be able to satisfy the requirements of the Inheritance Act.

In the recent case of Pendlebury v Brooke, Chris Green represented the claimant, Robert Pendlebury, in a dispute with his step brother, Matthew Brooke, following the death of his step father, James Brooke.

Robert was one of two sons born to Margaret Brooke and Douglas Pendlebury. When Robert was a young child, Margaret began a new relationship with James Brooke and they had one son together, Matthew.

Margaret passed away in June 2013, without leaving a will. Under the rules of intestacy, her entire estate passed to her surviving husband, James.

The dispute arose on James’ death in December 2016. He also failed to leave a will so under the rules of intestacy, Matthew (as James’ only biological child), inherited the whole of James’ estate. The intestacy rules do not recognise step children unless they have been officially adopted. So, as Robert nor his brother, Jon, were the biological children of James and had not been adopted by him, they received nothing.

This seemed unfair, especially as James’ estate included everything he had inherited from Robert and Jon’s mother. But Matthew refused to make any concessions, insisting that he was entitled to retain the whole estate.

Robert therefore consulted Chris Green who provided a free case assessment. Chris felt that Robert had a valid step child Inheritance Act claim  and agreed to deal with the case on a No Win, No Fee basis.

Chris’ instincts were proved to be correct when, in May 2019, the trial Judge agreed that Robert should receive financial provision and made an award of £70,000 from his step father’s estate.

In reaching his decision, the Judge considered the factors set out in Section 3 of the Inheritance Act. It is interesting to look at how the Judge dealt with each of these factors in some detail, as it gives us an insight into how claims made by an adult child under the Inheritance Act are decided:

Section 3 (1)(a) – the financial needs and resources of the claimant

This is one of the key factors when considering, ‘Can a step child contest a will or intestacy?’

Robert had a deficit between his household income and expenditure, but the evidence confirmed that he was managing to pay current everyday expenditure.

Whilst the Judge noted that Robert’s family were “getting by”, he felt this did not necessarily mean that they were living at the appropriate standard.

The Judge accepted that Robert was dependent on his  wife’s earned income and a combination of state benefits. It was likely she would retire in six or seven years’ time. They live in rented accommodation, with a car worth £500-£1,000 and had some debt.

The Judge took a “broad-brush” approach in assessing Robert’s ‘needs and resources’ and declined to undertake a forensic accountancy exercise. By its very nature, a claimant’s stated ‘needs and resources’ will always be generalised and include estimations.

Section 3 (1) (b) – the financial needs and resources of any other applicant

There were no other applicants making a Claim under the Inheritance Act

Section 3(1)(c) – the financial needs & resources of any beneficiary of the deceased’s estate

Matthew was the sole beneficiary of James’ estate. He produced a schedule showing annual expenditure of £13,289.26. He last worked in April 2015, before taking voluntary redundancy to look after his father and was still attempting to finish off an Open University Degree that he had started may years earlier.

His income was limited to student loans, purportedly spent on tuition fees, and the capital from the Estate of which there was £190,000 left at the time of the trial. The Court calculated that Matthew had spent around £50,000 of the estate in the last two years and that his circumstances were due to a ‘lifestyle choice’.

Section 3(1)(d) – any obligations and responsibilities which the Deceased had towards the Applicant or towards any Beneficiary of the Estate

Neither Matthew nor Robert had been financially maintained by James.

They disagreed about whether Margaret and James had promised the children that their combined estates would ultimately be divided equally between them.

Robert was supported by Jon, in saying that such promises had been made and this was also supported by the terms of an earlier will.

Section 3 (1)(e) – the size and nature of the net estate of the deceased

The estate was valued at about £240,000 at the date of James’ death, of which around £50,000 had already been spent by Matthew at the time of the trial.

Robert alleged that a substantial part of James’ estate had come from his mother Margaret as she herself been the beneficiary of an inheritance.

Section 3(1)(f) – any physical or mental disability of any applicant or any beneficiary of the estate

 Robert had serious physical and mental health issues, but Matthew nevertheless refused to accept that Robert was unable to work.

Robert’s Medical Records confirmed that his health issues included:

(i)       Type 2 diabetes;

(ii)      High blood pressure;

(iii)     Low mood, depression and anxiety;

(iv)     Bilateral cataract surgery;

(v)      Four bulging discs in his spine;

(vi)      Blockages in three arteries in his right leg, two of which are 90% blocked;

(vii)     Amputation of the right fifth toe and part of the right foot;

(viii)    Borderline glaucoma; and

(ix)     A real likelihood of future leg amputation.

The Judge accepted that Robert’s previous employment of delivering furniture and security work was no longer physically possible and that he had no experience of clerical or administrative work.

A Personal Independence Payment Tribunal assessed Robert as having a “severely limited ability to carry out activities of daily living” and was entitled to the mobility component at the standard rate.

The Court therefore concluded that he was unfit to work and would remain so for the foreseeable future.

Section 3(1)(g) – any other matter that is relevant

James was the only father that Robert had ever known, as he was only two years old when Margaret began her relationship with James.

Robert had, until his mother’s death, enjoyed a normal father/son relationship with James.

However, Robert had been upset by the speed with which James and Matthew had administered Margaret’s estate. As a result of that, Jon told Robert to stay away from James and this resulted in an estrangement which lasted until James’ death.

Jon gave evidence to the court that, in his final year, James had indicated a desire to divide his estate equally between Matthew and Jon (thus excluding Robert).

The Court accepted that there had been a good relationship between Robert and James up until June 2013. Further, the Judge decided that the subsequent estrangement was not enough to defeat the inheritance claim. He also declined to make any determination about irrelevant issues from James’ life, such as “who saw James the most?” or “who visited more often?”.

Is the disposition of the deceased’s estate such as not to make reasonable financial provision for the claimant?

The court viewed this as a balancing exercise, weighing, on the one hand the fundamental right of testamentary freedom (or the right not to make a will) with the court’s powers under the Inheritance Act.

Factors supporting Robert’s claim included:
(i)        the fact that James had acted as a father to him for 46 years (i.e. almost Robert’s entire life);

(ii)       the assurances given to Robert by his mother and James that all three children would benefit equally from their combined estates;

(iii)      the fact that Robert’s mother brought about £66,000 into the estate from her own inheritance;

(iv)      the size of the estate being sufficient for an award to be made;

(v)       the fact that Matthew’s competing needs were modest and would not prevent an award being made; and

(vi)      Robert’s very poor health and the effect this had on his earning capacity.

The Judge said that because Robert and his wife were “making ends meet” it did not mean they had no need for further financial provision for their maintenance.

It was on this analysis that the Judge reached the conclusion that the disposition of James’ estate under the intestacy rules did not make reasonable financial provision for Robert.

The standard of living appropriate to him was that of the ‘ordinary working man’ and his current standard was the subsistence level experienced by those who have to fall back on state benefits.

Robert therefore required reasonable financial provision to bridge that gap and the Judge determined that this amounted to £70,000.

If you would like to speak to Chris Green on the subject, ‘Can a step child contest a will or intestacy rules?’ then you can call him on freephone 0808 1391606 or email us at [email protected]