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Is Fennessy and Turner and Another [2022] WTLR 1296 a change of direction for adult claims in a 1975 Act claim or is the decision based upon the courts exercise of their discretion.
1975 Inheritance Act claims continue to be on the rise. The Court of appeal handed down a Judgment in December 2022 involving a claim by an adult child Mr Fennessy who was awarded financial provision of £195,000.00. That sum was upheld on appeal.
Adult children are of course one of 7 categories of Claimant who can make an application for reasonable financial provision from the deceased estate. Following the Supreme Court decision in Ilott and The Blue Cross [2017] UKSC17 (Ilott and Mitson), while claims for adult children remained possible, there appeared to be a hardening approach by the court particularly in adult children cases.
So does the decision mark a change in the view of the court? On first read potentially so, however, three matters from Fennessy which reviewed the law in Ilott and the Blue Cross required specific mention and continue to be key elements in claims within the 1975 Act.
- Claims still must be resolved on a case-by-case basis and the level of maintenance fell to be assessed on the facts of each case the court retains therefore its significant discretion in cases of this type.
- The word ‘maintenance’ connotes only payments which directly or indirectly enable the applicant to discharge the cost of his/her daily living at whatever standard of living was appropriate to him (claims by spouses differ slightly); and
- There is no need for the claimant to establish a moral claim.
In my view, while this case appears helpful to adult children cases, the legal position has not altered significantly although time will tell if there is a softer and less robust approach taken in such cases in the future, especially given the current economic and social climate.
What remains clear is that the Court must still exercise their discretion on a case-by-case basis and consider the relevant section 3 criteria as may be evident in each individual case. The award must also be relevant to the maintenance needs of the Applicant
Cases involving all potential Claimants under the 1975 Act continue to have significant complexities and it is important therefore that if you either have a potential claim or are defending one that you obtain specialist legal advice.
If you wish to discuss a potential claim or want some legal advice then please contact wither Kevin Richardson at or local offices in and around Portsmouth on 02392660261 or John Hoey on the Isle of Wight 01983 615615 or visit our website www.biscoes-law.co.uk