Business Clinic: When a widow is not included in the will

Whether you have a legal, tax, insurance, management or land issue, Farmers Weekly’s Business Clinic experts can help.

Here, Robert James, Associate Solicitor, Thrings, advises on what to do when a farmer dies but does not leave provision in his will for his widow. 

Q My mother re-married five years ago, and she and I moved into my stepfather’s family farm. My stepfather died two months ago, and we have just discovered he has left his estate to his biological children.

The main asset of the estate is a well-equipped and well-managed 600-acre, owner-occupied mainly grade 2/3 land farm.

I am worried about my mother. I am also disappointed that no provision was made for me in the will.

Although I moved out to a rented cottage about four years ago, I would like to know whether there is any action I can take.

Robert James Associate Solicitor, Thrings

A The rise in the number of disputes of this nature can usually be attributed to one of two things: lack of succession planning itself, or the lack of communication in the succession planning that has been done.

Both circumstances can result in disappointed parties when it comes to deal with the estate administration.

Each case depends on its own facts, but based on the information you have provided, there would appear to be potential recourse open to you.

It is possible for disappointed beneficiaries to bring a claim under the Inheritance (Provision for Family and Dependants) Act 1975 (Act).

Only certain categories of people are eligible to bring a claim, however. As the deceased’s wife, your mother will most likely have a claim, but the absence of further information makes it difficult to comment on your circumstances.

See also: Business Clinic – is my son a partner in the farming business?

As a stepchild, you may be able to bring a claim provided it can be shown that you were “treated as part of the family”. Your independent living arrangements, and the nature of your relationship with your late stepfather, would need to be investigated.

If there was any difficulty satisfying this test, there is a fallback provision that allows anyone who was being maintained by the deceased.

The issue of what amounts to maintenance was recently examined by the Supreme Court in Ilott v Mitson.

While not a farming case, this decision nevertheless sets out universally applicable guidance. In Ilott, Lord Hughes said that maintenance “cannot extend to any and every thing which it is desirable…to have. It must import provision to meet the everyday expenses of living.”

Broadly translated, being maintained means you would need to show that your stepfather was making a substantial financial contribution to you to assist with your reasonable needs, such as housing, rent, normal living costs and so on.

Being maintained

The law states that any demonstration of being maintained must relate to the period immediately before his death, so the fact you moved out a few years ago may be a material factor that could hurt your claim.

Once you are able to show you are eligible to make an application, the court will look at two things: firstly, what financial provision has been made for the applicant under the will; and secondly, in the absence of reasonable provision, what provision should the court now make.  

Proceeding on the basis that no financial provision has been made for you and your mother under the will, the court’s approach to what amounts to being reasonable differs depending on the type of applicant.

For you, the key question for the court to determine will be what is the minimum you need for your maintenance? Your mother, on the other hand, is in a stronger position.

The court will not restrict the question of reasonableness solely to maintenance; instead it will look at the wider circumstances.

Overall, your mother’s case is likely to be looked at in more favourable terms. To put it bluntly, the court will simply want to ensure that you can live above the breadline, whereas the court will look to relieve your mother from any financial anxiety for the future.

You need to bear in mind that a claim under the Act should be brought within six months from the grant of probate, so it is recommended that you obtain independent legal advice as early as possible.

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