Discrimination and the Inheritance (Provision for Family and Dependants) Act 1975
A sum amounting to 50% of a £1 million estate was awarded to a disinherited surviving spouse in Kaur v Estate of Karnail Singh & Others [2023] EWHC 302 (Fam). The Claimant was 83 years old, not in very good health, and dependent on her late husband. For cultural reasons, he made a will leaving his estate to his two sons, preferring his estate to be inherited by the male line, leaving out his wife and four daughters. The wife would have been left destitute and this made it a rather open and shut case under the Inheritance (Provision for Family and Dependants) Act 1975.
One son supported her claim and the other did not engage at all, necessitating a hearing. The Court however decided (applying the “divorce cross-check” White v White (2000) which provides for a starting point of 50/50 split were the parties to a marriage to divorce) that she should be entitled to 50% of the estate. A key factor was that she contributed significantly to the marriage – had the couple kept their money separate or had they themselves separated then the Court may not have made such a generous award. Had there been competing claims, the claimant may have had a tough battle. Another key factor was the fact that the wife had been completely left out of the will – had their been a less generous award for her, it might not have been as straight-forward.
Another issue to arise from this case was sex discrimination and whether the Court has any means of preventing it when it comes to making wills. Forced heirship exists in many countries but not in England and Wales where it is up to the testator to provide for whoever they see fit to, in whatever proportion they want. Whilst this enables a testator to treat certain relatives differently should the circumstances justify it (e.g. not providing for a child who has committed a serious crime or become estranged), it does in effect allow unreasonable and even discriminatory decisions to be made. Although the Court cannot fully interfere with the concept of “testamentary freedom”, even where the testator has behaved in a discriminatory manner, the power to make awards for close relatives, spouses and cohabitants under the 1975 Act does often provide an indirect way of combating discriminatory decisions by testators.
One other point to bear in mind is that had the testator left half of his estate to his wife, the spousal exemption and residence nil rate band (which applies to a couple’s home if the home forms part of the estate) would have saved the estate a considerable sum in Inheritance Tax. When cases of this nature settle, the usual means by which the settlement is formalised is a “deed of variation”, which in effect is a substitute will. This, when presented to the District Probate Registry, stands as though it were the Deceased’s will and attracts the tax implications.
Claims under the 1975 Act are not only available to surviving spouses of course. In this case, the daughters would also have been eligible claimants. However, it is likely that any award the Court would have made for them would be much more limited. Spousal claims generally tend to mirror the range of outcomes that might be expected in a financial settlement under a divorce whereas adult children can only usually expect to receive a sum that is suitable for their maintenance – if the daughters of the Deceased had all been fairly comfortable financially, and independent, then they may not have been awarded anything at all.
For further advice and assistance in relation to 1975 Act claims, please contact Lewis Hastie or Joshua Proud at BRM Solicitors on 01143497000.
