This analysis will advise on the legal issues arising from the estate of the late Catherine Rigney. The advice is based on the following assumed facts: Catherine died leaving a home-made will which gives her entire estate to a charity, making no provision for her adult son, David, who was partially financially dependent on her. There are also concerns about whether the will was correctly executed. The key issues are, firstly, the formal validity of the will under section 9 of the Wills Act 1837 and, secondly, whether David can make a claim against the estate under the Inheritance (Provision for Family and Dependants) Act 1975.
Formal Validity of the Will
For a will to be valid in England and Wales, it must comply with the formal requirements set out in section 9 of the Wills Act 1837 (as amended by the Administration of Justice Act 1982). Section 9 stipulates that no will shall be valid unless: (a) it is in writing, and signed by the testator, or by some other person in his presence and by his direction; and (b) it appears that the testator intended by his signature to give effect to the will; and (c) the signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and (d) each witness either— (i) attests and signs the will; or (ii) acknowledges his signature, in the presence of the testator (but not necessarily in the presence of any other witness).
The main issue here is compliance with sections 9(c) and 9(d). The requirement is that the testator must sign or acknowledge their signature in the simultaneous presence of two witnesses. These two witnesses must then each sign or acknowledge their own signature in the presence of the testator.
In Catherine’s case, let us assume one witness was in the room when Catherine signed, but the second witness arrived later, at which point Catherine acknowledged her signature to both of them together. This would satisfy s.9(c). However, if the first witness then signed the will but left before the second witness signed, the will could fail. The law requires each witness to sign in the ‘presence’ of the testator. ‘Presence’ can mean being in the same room with a clear line of sight to the person signing (see Casson v Dade (1781)). If both witnesses were not present together when they witnessed Catherine’s signature, or if Catherine was not present when each of them signed, the will would be declared invalid. If the will is invalid, Catherine’s estate would be distributed according to the rules of intestacy, and David, as her son, would likely inherit the entire estate.
Claim under the Inheritance (Provision for Family and Dependants) Act 1975
If the will is held to be valid, David may still be able to make a claim against the estate. The Inheritance (Provision for Family and Dependants) Act 1975 allows certain individuals to apply to the court for a share, or a larger share, of a deceased’s estate if the will fails to make ‘reasonable financial provision’ for them. As the child of the deceased, David is eligible to make a claim under section 1(1)(c) of the Act.
For an adult child, the standard for provision is defined in section 1(2)(b) as "such financial provision as it would be reasonable in all the circumstances of the case for the applicant to receive for his maintenance". This is a lower standard than for a spouse. The courts will consider the factors listed in section 3(1) of the Act. These include David’s financial resources and needs, any obligations Catherine had towards him, the size and nature of the estate, and any physical or mental disability of the applicant.
The fact that David was partially dependent on Catherine is a significant factor. However, courts are often reluctant to interfere with a testator’s freedom to dispose of their property as they wish, especially concerning adult children who are capable of working. The landmark case of Ilott v The Blue Cross [2017] UKSC 17 confirmed that an adult child does not have a right to inherit, but a claim can succeed where there is a clear need for maintenance that is not being met. In Ilott, an estranged adult daughter on state benefits successfully claimed against her mother’s estate, which had been left entirely to charities. The Supreme Court awarded her £50,000, which was calculated to provide for her maintenance without affecting her state benefits. This shows that even successful claims by adult children may result in limited awards strictly for maintenance, rather than a large capital sum.
Conclusion
In summary, the first step is to determine the validity of Catherine's will. If the execution did not follow the strict requirements of section 9 of the Wills Act 1837, the will is void, and the intestacy rules will apply. If the will is valid, David has a potential claim under the 1975 Act. Given his partial financial dependency, he has grounds to apply, but any award is not guaranteed and would likely be limited to what is reasonably required for his maintenance, reflecting the principles in Ilott.
References
Casson v Dade (1781) 1 Bro CC 99
Ilott v The Blue Cross [2017] UKSC 17
Administration of Justice Act 1982
Inheritance (Provision for Family and Dependants) Act 1975
Wills Act 1837
