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14 February 2018

For love(child) or money: claims under the Inheritance Act

This article was written by Geoffrey Kertesz and Rebecca Longshaw and was first published by Spear’s.

A mistress or lovechild always makes a good headline and, occasionally, can make for an interesting legal battle. A case currently in the High Court concerning the estate of a wealthy deceased husband, his widow, his mistress and their lovechild has been making headlines. It raises questions about whether a child who is the product of an affair can bring a claim against the deceased parent’s estate.

Those who feel that they have been unfairly left out of a will can make a claim under the Inheritance (Provision for Family and Dependants) Act 1975 (the ‘Act’), known by some as the ‘Mistresses’ Charter’. There are three considerations under the Act. Firstly, does the claimant qualify to bring a claim? Secondly, if so, does the will make ‘reasonable provision’ for the claimant? Thirdly, if not, what provision would be reasonable?

Only select groups of people can make a claim under the Act for provision from an estate. Typically, claims are brought by spouses and civil partners, children, unmarried partners, and those being ‘maintained by the deceased’.

A lovechild would normally fall within the ‘children’ category. If the child’s parentage is disputed, a court has the power to order DNA testing. If DNA testing is inconclusive or not feasible, the lovechild will more than likely still be able to bring a claim within the category of ‘being maintained by the deceased’.

The question then becomes whether the will makes reasonable financial provision for the lovechild. This threshold test revolves around the amount of money required for the lovechild’s ‘maintenance’. Maintenance is relative and, because these cases are so variable, has unfortunately been given the rather woolly definition of being ‘more than subsistence but less than the amount needed for the claimant’s general benefit or welfare’.

Fortunately, the Act provides a list of factors to be considered when determining ‘reasonable financial provision’. These include the size and nature of the deceased’s estate and the claimant’s current or likely future financial resources and needs. In the case of children (love or otherwise), the court must also consider the manner in which the child is being or might expect to have been educated. This will be relevant where the deceased parent was already or, importantly, was expected to be paying the child’s school / university fees.

A young child has an undeniably sympathetic claim and a lack of support during the deceased’s lifetime is not necessarily a barrier to that claim. A lovechild’s claim is unlikely to receive extra judicial scrutiny. Claims by adult children can be more difficult.

Once the lovechild establishes that the will does not make sufficient financial provision, the issue becomes how much, if anything, the lovechild is entitled to. There is no hard and fast rule about the size of awards and every case very much depends on its facts. However, a lovechild could only ever claim to be entitled to an amount that is reasonable for its maintenance, including for education. The court’s starting point will therefore be the lovechild’s reasonable needs and resources. These needs are relative and will be balanced against those of other beneficiaries.

So while having a third person in the marriage may seem like a good idea at the time, it is important to remember that its full effect may not come to light until after death.

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