A barrister who cared for his mother with dementia demands a larger slice of the equally distributed inheritance pie after her death, but his two brothers disagree. What does the law say, asks John Melville-Smith
Rachel Heath died in 2015 aged 93. By will, she appointed her sons, Dominic, Jeremy and Timothy as co-executors and left her £1.8 million estate to them equally. Scrupulously fair, one might think?
Timothy, aged 62, a maths graduate and qualified barrister, disagrees. Seeking a larger share, he told the court: 'I have been looking after mother for many years, a difficult person to look after. I never asked to be paid. I didn’t ask to be paid for looking after a parent. But my brothers took none of the burden… they left me to do what they took advantage of. You cannot have a society where somebody dedicates their life and is denied compensation.'
Two full-time carers looked after Rachel, who suffered from dementia during her last few years, for eight hours a day each, leading Dominic and Jeremy to assert that Timothy was 'over-egging the pudding'.
So, Rachel’s will is not itself being challenged, say for lack of capacity when she made it. Rather, Timothy is seeking an enhanced share under the Inheritance (Provision for Family and Dependants) Act 1975. The recent, widely-reported, hearing, however was not about that directly but instead the hearing of an application by his brothers for his removal as an executor.
Under the Administration of Justice Act 1985, the court may appoint a substitute personal representative (PR) in place of an existing one or, indeed, if there are two or more existing PRs, simply terminate the appointment of one of them. The power is a discretionary one and it is by no means easy to persuade the court to remove someone whom the deceased appointed to administer the estate.
Case law guiding judges’ decisions derives mainly from the 1884 case of Letterstedt v Broers which says that not every mistake or improper conduct on the part of a PR will justify removal: It 'must be such as to endanger the trust property, or to show a want of honesty, or a want of proper capacity to execute the duties, or a want of reasonable fidelity.'
So, dishonesty and clear incompetence will do. Many applications, however, are based upon a breakdown in the relationship between PRs and beneficiaries and the case gives limited assistance here: 'Friction or hostility between trustees and beneficiaries is not of itself a reason for the removal of trustees. However, it should not be disregarded if the hostility is grounded on the mode in which the trust has been administered...'
What is clear is that the overriding principle is the welfare of the beneficiaries. In the current case, the court found that that Timothy had been one of his mother’s carers and had not acted in any way improperly as a PR. However, he could not remain in post as his claim for a greater share of the estate created an inherent conflict of interests with his duties as a PR. An independent solicitor is to replace him.
This leaves him free to pursue his application under the 1975 Act, legislation which has produced extensive human interest press reporting over recent years, focused mainly on the drama of Ilott v Mitson. Whereas that involved a small estate, an impecunious claimant and a spiteful mother who deliberately left everything to charities with whom she had no connection, here we have a will that is, superficially, entirely equitable, one in which each brother looks likely to inherit up to £500,000, subject to inheritance tax.
And this is Timothy’s central problem. As an adult child of the deceased, he may apply to the court for increased provision on the sole ground that the disposition of the estate is not such as to make reasonable financial provision for his maintenance.
While it continues to surprise many people, the fact is that an adult child does not have any right to inherit a parent’s estate at all, and nothing at all can be reasonable provision. Certainly, such an applicant is unlikely to succeed merely by showing that he is in poor financial circumstances, though being able to establish that has always been a pre-requisite.
Timothy’s case appears to be based not on the objective assertion that the will fails to provide reasonably for his maintenance, but, rather, that he has a moral right to more than his brothers because of his unpaid care of his mother in her final years. Indeed, he said as much in evidence: 'You cannot have three people carers living in a house with two earning £45,000 a year and one getting nothing. I think the estate should honour its debts.'
But the estate has no such debt to him. There was no contract for the provision of care services by him. Had the will excluded him entirely, he might have been able to surmount the initial hurdle by reason of his care of his mother. However, on the assumption that he will inherit some £500,000 – plainly sufficient provision for his maintenance – the law as it stands would have to be stretched well beyond its elastic limit to produce an award for him in excess of his entitlement under the will.
John Melville-Smith is an Associate at Seddons