In a recent England & Wales High court judgement (Kaur v Estate of Karnail Singh [2023] EWHC 304 Fam) the Claimant, Harbans Kaur, was successful in her claim for reasonable financial provision under the Inheritance (Provision for Family and Dependants) Act 1975 (equivalent to the Inheritance (Provision for Family and Dependants) (NI) Order 1979 in this jurisdiction) after she and her daughters were excluded from her late husband’s Will.

Background

The Claimant was the 83-year-old widow of Karnail Singh. The couple had been married for 66 years before his death in 2021. They had 6 surviving children – 2 male and 4 female. In June 2005 the deceased had made his last will, leaving all of his estate between his two sons, thereby excluding the Claimant and their four daughters altogether.

The court heard that the Claimant had played a “full role in the marriage”, both as a wife and working in the family clothing business (for which she did not receive a salary). During their marriage, the Claimant was entirely financially dependant on the deceased, who paid all family outgoings.

Following her husband’s death, the Claimant’s annual income consisted solely of just under £12,000 in state benefits. She is also registered disabled and has a number of medical conditions.

The deceased’s estate was estimated at £1.9m (although the defendant executors contended that it was closer to £1.2m), the entirety of which was built up during the marriage.

The Claimant applied for half of the net estate, whatever the value, on the basis that the sum she would ultimately receive would constitute reasonable financial provision under the legislation.

Judgment

In considering the application the court had regard to a number of important factors when deciding  whether to make an order for financial provision. These factors included the financial resources and needs of the Claimant, any obligations and responsibilities which the deceased had towards the Claimant, as well as the size and nature of the estate.

As the application was brought by a surviving spouse, the court was also required to consider additional factors, known as the “divorce cross-check”, such as the age of the Claimant, duration of marriage and the contribution made by the Claimant to the welfare of the family. This exercise is intended to ensure that a surviving spouse is not worse off as a widow(er) than as a hypothetical divorcee.

The court highlighted that the Claimant had made a “full and equal contribution to the marriage” in accordance with the seminal case of White v White [2000] UKHL 54, which demonstrated the court’s view that the sole “breadwinner” and sole “homemaker” are to be viewed with equal importance.

As such, the court concluded that this was the “clearest possible case” that reasonable financial provision had not been made by the deceased and awarded the Claimant 50% of the net value of the estate.

Take away

It is important to note that although testators in the UK have complete testamentary freedom, meaning a person can dispose of their estate in their will however they wish, the court in this case reinforced the concept of “fairness” and the idea of a moral duty to provide for a surviving spouse or civil partner, which in this case was a spouse who fully contributed to the marriage as a homemaker and caregiver and otherwise had no assets and little income.

This case should arguably provide a degree of reassurance to homemakers that their financial needs will not be automatically dismissed if they find themselves excluded from a spouse’s will. Testators considering making a will which excludes a spouse, civil partner or other dependant should therefore give careful thought to their intentions before making any decisions which could be perceived as rash or unfair. Equally, lawyers instructed to prepare a will for a testator in such terms will no doubt ensure that they tailor their advice accordingly.

 

If you have any questions about the issues raised in this article, please contact Fiona Kirkpatrick, Director in our Private Client department at Fiona.kirkpatrick@tughans.com

While great care has been taken in the preparation of the content of this article, it does not purport to be a comprehensive statement of the relevant law and full professional advice should be taken before any action is taken in reliance on any item covered.