The recently decided case of Kaur v Estate of Karnail Singh & Ors [2023] EWHC 304 (Fam) serves to remind us all to be careful when making our wills and leaving our estates to certain family members whilst excluding others.

The law of England and Wales has for some time now been clear that an individual can leave their estate to whoever they wish; also known as testamentary freedom. However, if the exercise of that freedom results in a failure to make reasonable financial provision for a family member or dependant, then courts will intervene and change how that inheritance passes, at the expense of the named beneficiaries of the estate.

All cases of this nature turn on their own facts, which in this particular case were as follows:

The claimant and her husband (the deceased) were married in 1955 and had a long marriage of 66 years as at the time of his death.  The claimant was 83 years old when he died and they had two boys and four girls together, all of whom are now adults.

The deceased’s will left the whole of his substantial estate (worth around £1,990,000) to his two sons. His wife, the claimant, received nothing, nor did any of his four daughters. In contrast to the wealth of the deceased’s estate, the claimant was receiving an income of only £12,000 a year made up of state benefits. She had a number of medical conditions and was registered disabled. At the time the claim was decided, she had sadly moved out of the family home to live with one of her daughters, because one of her children had moved into the home and relations with that child were strained.

Although all of the wealth from the marriage formed part of the deceased’s estate, that wealth was built up during the deceased’s marriage to the claimant and the judge who decided this case found that the claimant had made a full and equal contribution to the marriage. In order to come to that conclusion, the judge considered the case of White v White [2000] UKHL 54 in which the court gave consideration to the wife’s contribution as a wife and mother to the family.

To put it simply, the fact that the deceased may have controlled all of the family’s wealth wasn’t determinative of unequal contribution to the marriage, and there is no place for discrimination between husband and wife based on their respective roles in the marriage.

This was simply a case in which the deceased wanted to ensure that his wealth passed only to his male heirs / descendants.

However, the claimant felt that this represented a failure to make reasonable financial provision for her as the deceased’s spouse and she brought a claim under the Inheritance (Provision for Family and Dependants) Act 1975 (“the Act”), section 1(1)(a) and she sought an order from the court that she should receive 50% of the estate.

When a claim is issued at court and the Claim Form is served on the defendants (the process of bringing the claim to the defendants’ attention) it is for the defendants to file Acknowledgements of Service within 21 days, indicating whether or not they intend to contest the claim. It is interesting to note that in this case, one of her sons confirmed that he did not intend to contest her claim; presumably seeing the injustice his mother was facing. The other son took no action one way or the other either to actively defend it, or to respond confirming that he would not. On that basis and when the case proceeded to a hearing, the judge treated the case as undefended and proceeded to give early judgment.

As in all cases where the court is asked to consider whether a will fails to make financial provision for someone who is eligible to bring the claim, the court considered:

• The financial resources and needs the applicant has or is likely to have in the foreseeable future;
• The financial resources and needs that any other applicant has or is likely to have in the foreseeable future;
• The financial resources and needs of any beneficiary of the estate now or in the foreseeable future;
• Any obligations or responsibilities the deceased had towards any applicant or beneficiary of the estate;
• The size and nature of the estate of the deceased;
• Any physical or mental disability of the application or any beneficiary of the estate; and
• Any other matter, including the conduct of the application or any other person, which in the circumstances of the case the court may consider relevant.

Under s.3(2) of the Act, there are additional considerations to which the court must have regard in cases where a claim is made by a spouse or former spouse, which can be summarised as follows:

• The age of the applicant and duration of the marriage;
• The contribution made by the applicant to the welfare of the family of the deceased, including any contribution made by looking after the home or caring for the family.

There is another relevant factor to be considered in cases involving spouses, known as the “divorce cross check”, which basically means that that court should think about what the claimant might have expected to receive in the way of financial provision in the event that she and her husband were divorcing, rather than if her husband had died.

Taking into account all of those factors, the court decided that the claimant was precisely the type of person which the Act existed to protect and this was, in the judge’s words, “the clearest possible case entitling [the judge] to conclude that reasonable financial provision had not been made for [the claimant].”

The court went onto say, “after a marriage of 66 years, to which she made a full and equal contribution, and during which all the assets accrued, she is left with next to nothing. The divorce cross check points unerringly towards an equal division of the assets… her intention is to purchase a modest property near her daughter. Her income requirements are modest, and [the claimant] accepts that all her capital and budgetary needs can comfortably be met within in the sums available if she receives an equal share…”

The usual rule in cases like this is that the winner of the litigation is entitled to their legal costs to be paid, and the court proceeded to order that that the claimant’s legal costs in this case were to be paid by the estate, which is ultimately at the expense of the residuary beneficiaries; her two sons.

This decision of the High Court is a stark reminder to the public that although we can leave our estates to whomever we wish, failure to exercise caution by carefully considering the needs of your family and dependants may be considered unreasonable by a court, which has the power to change the disposition of your estate despite your wishes. It is noteworthy that the lawyer who acted for the claimant in this case has called for “a shift in the traditional mentality”; in other words, challenging the cultural notion that only male heirs should inherit, particularly in cases where this leaves a female spouse without sufficient means to live out the rest of her life and where she contributed equally to the marriage.

James-Urquhart-Burton – Solicitor & Partner