There are times when people are unhappy with the distribution of assets that the will specifies. Children, spouses and other relatives (e.g. parents) may feel they have been given less than they should have, or even nothing at all. The same may apply if the deceased has died without a will – where a spouse has been given it all under the Intestacy Act 2010 list, but a child is upset because they have nothing. It is possible to apply to the Supreme Court for an order to give a person more out of the assets of the estate – even to override what a will says to do so.
This is because some people who were dependent on the deceased person when s/he died can bring a claim against their estate if they have not been properly supported by the will or by an intestacy. The Testator’s Family Maintenance Act 1912 allows this to happen. Under this Act (the TFM Act) the spouse, children and parents of the deceased person can make a claim for a bigger share of the estate (s.3 TFM Act).
This includes adopted children, illegitimate children, children of different marriages/relationships and any other child of the deceased person. They all have equal status in the eyes of the law (s 3 Status of Children Act 1974), and any reference in a will or piece of legislation to a ‘child’ includes all of them. (Step-children are not considered to be children of the deceased. However, half-brothers or half-sisters of the deceased are considered to be ‘sister’ or ‘brother’ when reference is made to such in a will. Where a deceased dies intestate, half-brothers and half-sisters are entitled to participate in the estate of the intestate as full siblings.)
If a TFM application is made to a court, the judge will consider the net value of the estate, and whether the applicant has means of support from other sources. The judge has a broad discretion in deciding whether to give the applicant more from the estate and that includes the discretion to refuse an application on the basis of the character or conduct of any person by or on behalf of whom the application was made (s 8). Where the deceased left a valid will, the court may have regard to the reasons, if they can be found, for making the dispositions as were made in that will (s 8A).
So if, for example, a testator has ‘cut a child out of the will’ and left them nothing, that child could apply to the court for a share of the estate. However, if the child has, say, been violent to the testator, or been estranged for many years, the court will consider this in deciding whether to award the child anything from the estate.
Page last updated 15/06/2021