Will your words come back to haunt you?
29 January 2024
Birketts’ Contentious Trusts and Probate Legal Director, Sharon Bell, discusses an inheritance case where the court has used conduct as a reason not to make provision for an adult child.
We live in an age where we rely on written conversation rather than having a face-to-face conversation. Sometimes difficult, emotive, and often confrontational conversations take place over text, e-mail, WhatsApp, Messenger, X and Facebook. These conversations may end up being saved to an electronic device unless deleted by the sender and the recipient. Technology companies may also be able to recover/retrieve old data. This will be of concern to any keyboard warriors who cannot resist telling an individual or an organisation what they think of them from behind a screen.
We hear too many times in the press that a young person’s career is over before it has started due to a thoughtless comment made in their younger years.
The above needs to be considered in circumstances where your conduct may lead to you being disinherited by someone who may have been expected to have made provision for you in their Will. Your conduct may prevent you from bringing a claim under the Inheritance (Provision for Family and Dependants) Act 1975 (the 1975 Act) despite you having a need for financial assistance from their estate.
In Wright v Waters 2014 EWHC 3614 CH, Ms Wright was the daughter of the deceased. The deceased made no provision for Ms Wright in her Will and Ms Wright brought a claim against the estate under the 1975 Act for reasonable financial provision.
Ms Wright was an adult child and whilst the courts do not look favourably on financially independent adult children, she was in necessitous circumstances with serious health issues. She was wheelchair bound after suffering a serious heart attack, had diabetes, angina, heart disease, osteoarthritis and depression amongst many other medical conditions. There was compelling evidence that this was a case when reasonable provision should have been awarded.
However, the court is to regard all of the Section 3 factors under the 1975 Act including, “any other matter, including the conduct of the applicant or any other person, which in the circumstances of the case the court may consider relevant”.
In 2001 Ms Wright sent a letter to her mother saying that she no longer wished to communicate with her and wished that her mother was dead. From that date Ms Wright was estranged from her mother and made no attempt to contact her mother or reconcile her differences.
The letter wishing her mother dead was provided to the court as evidence. Contemporaneous documents are the best form of evidence in litigation.
It is not unusual for the court to make provision for an estranged adult child. This is highlighted by the highly publicised case of Illott v Mitson 2011 EWCA Civ 346. However, although the courts will often try to avoid getting bogged down in conduct issues, the judge in this case described the behaviour of Ms Wright as “extreme” and concluded that her behaviour had outweighed all other factors in her favour. Therefore, it was objectively reasonable for the deceased to exclude her daughter from her Will.
Conduct and behaviour against the deceased must therefore be considered. As this case clearly shows, bad behaviour may have a detrimental impact upon a claim brought under the 1975 Act which would ordinarily have been a claim that had good prospects of success at trial.
The Birketts view
Early disclosure of all exchanges with interested parties in any dispute should be provided to your legal advisers so that they can advise on whether the exchanges may compromise the chances of success in your case.
It must therefore follow that even if the behaviour is not “extreme” a judge may take it into account and reduce the amount that may be awarded in any claim if the applicant’s behaviour is a factor.
So just be aware that your words could come back to haunt you!
If you think you have a 1975 Act claim and would like to discuss whether you think it would succeed, then contact Sharon Bell for specialist advice.
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Sharon Bell
Services
The content of this article is for general information only. It is not, and should not be taken as, legal advice. If you require any further information in relation to this article please contact the author in the first instance. Law covered as at January 2024.