Reasonable Provision for Estranged Family Members

When a disgruntled family member (the applicant) attempts to contest a lack of, or insufficient, provision for them from a deceased person’s estate, then the courts apply a two-stage test, so what is reasonable provision for estranged family members.

Firstly, the court considers whether the Will or Intestacy (if there is no Will) of the deceased person fails to make reasonable financial provision for the applicant. Secondly, if it believes there is a failure to provide, the court then considers the extent to which it should exercise its powers to make provision for the applicant, if at all.

For many reasons, people provide for family members by way of a “Life Interest” rather than as an absolute gift. An example of this is when a potential beneficiary has an addiction problem. The person creating their Will (the Testator) is concerned that the potential beneficiary may waste their inheritance, so the Testator leaves money for that them in such a way that other people (of the Testator’s choice) act as custodians over a gift to ensure that the vulnerable beneficiary uses their inheritance proceeds for sensible purposes only.

Would a court consider such a Life Interest contained within a Will to be reasonable financial provision, and what is reasonable financial provision?

There are TWO standards of “reasonable provision” which are applied by a court, depending upon the relationship between the dissatisfied family member (the applicant) and the deceased person (the Testator). There is the “Surviving Spouse” standard and the “Maintenance” standard.

The Surviving Spouse standard is always applied where the applicant is the spouse or civil partner of the Testator. This standard may also be applied where the applicant is the FORMER spouse or civil partner and they have not remarried, but this is decided at the court’s discretion. The surviving spouse standard is the higher standard of provision and expects provision of more than what would be required for basic maintenance

The Maintenance standard is applied to all other types of applicants, cohabitants, children and those treated as children of the deceased, as well as those being maintained by the deceased immediately prior to their death. This is a lower standard and only requires that the Will or Intestacy make provision that would be reasonable for the applicant to receive for their own maintenance.

When considering whether reasonable provision has been made, the court must also consider a range of factors. There are a total of 18 factors to consider, although not all of them will apply to every case. All factors that are relevant to a claim must be considered equally. Examples of some of the factors which are considered are outlined below.

Please note that these are considered based upon the facts at the time of the claim, and NOT at the time the Will was created or the date of death:

The current and future financial resources and needs of the applicant; and

The financial resources and needs of any other applicant; and

The financial resources and needs of any beneficiary under the Will or Intestacy; and

The size and nature of the deceased’s estate; and

The age of the applicant and duration of the marriage (if a spouse); and

Any physical or mental disability of the applicant or any beneficiary.

This then brings us to the question of whether a Life Interest is reasonable provision. To assess whether a Life Interest is likely to be sufficient, we need to consider what it provides for the beneficiary, what other provision has been made for that person if any, and what other financial resources they have available to them. We also need to consider the applicant’s relationship to the deceased as this will affect what standard of maintenance would be applied if a claim was made against an estate.

A Life Interest which provides little, or no income may not be reasonable provision if the Will or Intestacy does not also make further capital available to the beneficiary of a Life Interest (Life Tenant), or if the Life Tenant lacks any sufficient means of their own. On the other hand, a Life Interest which provides sufficient income for the Life Tenant to maintain themselves according to a reasonable standard may be perfectly reasonable.

The courts have been known to award Life Interests to applicants when no provision has been made for them in a Will, so this gives some indication that these types of provision can be more than sufficient. In a recent case, the court awarded a Life Interest over half of the proceeds of a deceased person’s home to her surviving partner, rather than a lump sum. It was decided that this was more appropriate as it would avoid assets passing to the surviving partner’s family after their death, instead of the deceased person’s child.

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