3 min read
Nat from Brighton writes:
My elder brother, who is now aged 80 and is gravely ill, has been a selfish man all his life and has been largely estranged from the rest of our family for many years. He is, however, an extraordinarily brilliant entrepreneur who amassed a great fortune.
He deserted his first wife many years ago (she was a very nice woman, who is now deceased) and after divorcing her, he married his secretary. They have been together ever since. He had two children by his first wife, and three more by his second wife. The latter three were brought up in the very lap of luxury and were given in due course lavish homes and successful businesses.
I am now concerned for my two nephews from his first marriage, whom he has largely neglected as a father all their lives. They are now aged 47 and 51 respectively. He has treated them like Cinderella by comparison with their siblings. I have done whatever I could as an uncle over the years to make amends, but I am not in his financial league and I have a family of my own.
These two children are proud individuals who did nothing to deserve this discrimination. They are both now married with their own children, but they live in strained financial circumstances. One recently lost his job due to the recession.
If, as we all fully expect, my brother dies leaving them and their children little or nothing in his will, but leaves enormous sums to his later children, is there anything that can be done?
Nat this is a horrible story, but sadly it is not untypical. I could cite you other such examples from the Bible and Shakespeare, let alone real life. Nor can I offer you any comfort in law. Testamentary disposition is one of the few areas of life where the state has not so far intervened overmuch to tell people what they can and cannot do. Certainly nothing can be done during his lifetime to compel your brother to behave properly, assuming that all appeals to his better nature have fallen on stony ground, and that there are no further avenues of moral pressure for you to explore now that he is drawing close to his maker. It is true that under a statute of 1975, the court does have some power to rewrite the will of a deceased individual on the application of a limited class of persons. They must be living and he must have failed to make “reasonable financial provision” for them hitherto. This class comprises the spouse (or “civil partner”), also an ex-spouse provided that he/she has not remarried, and children. It also includes any other financial dependant, but only if that dependant was being maintained by the deceased immediately prior to his death. Thus a mistress (say) could qualify. Grandchildren are not included, unless they fit within this last category of persons the deceased was maintaining immediately prior to his death.
This power to rewrite the will is hedged with many restrictions by Parliament, and the judges in turn have tended to use it very sparingly.
“Reasonable financial provision” is defined as maintenance, which means, in most cases, a living allowance only. Only a surviving spouse who has been unfairly cut out can claim more generous provision.
The court must have regard to all the circumstances of the particular case, especially the past conduct of both sides, that is to say both by the applicant towards the deceased and vice versa. Since the deceased has cut out the applicant, the court will want to know why, and will seek evidence on the point. In some cases, however, the court has ended up sympathising with the deceased. In one such case, the judge upheld a father who had cut out one of his daughters after she ran off against his wishes with an older married man. And the court will always intervene more readily in favour of a child with a physical or mental disability.
In my opinion, the reality is that no judge will intervene here to rewrite your brother’s will in favour of the children of his first marriage. Your nephews are adults, and they have long since made their own way in life. It matters not that they are in a modest way, or that he has treated them appallingly. The general principle remains that a person is free to give his money to whomsoever he wishes, and that he can discriminate as he pleases between his children and even his grandchildren. Thus the dead are free to rule from the grave and English law will not interfere. Perhaps a higher justice yet awaits him, however.
The above is not formal legal advice and is strictly without liability. Readers should consult a lawyer on any matter concerning them. All questions will be treated anonymously and all names changed.
Jonathan Goldberg QC is a leading lawyer practising at Ely Place Chambers in London
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