Non Provision for Son

Client has a disabled son who care is fully provided by the local authority.

They do not wish to leave him anything as this would just be used to pay the existing care fees and so there would be no improvement to his life by inheriting.

  1. Can the local authority challenge the wife based on non-provision?
  2. Should anything be included in the Will itself to explain or would a signed declaration under the inheritance (provision for family & dependants) act 1975 be sufficient?

Any other suggestions, please let me know in your replies.

Thanking you in advance.

I’m not sure on what grounds a local authority could challenge the will of a parent which made no provision for their disabled child. I(PFD)A 1975 would seem to provide them with no standing.

The so-called “capital disregard” provisions of SI 2014/2672 would also seem to offer the local authority no help; the parent has not deprived themselves of anything.

Malcolm Finney

The client can consider preparing a Discretionary Trust Will, so funds are available and can be used for the benefit of the disabled son, without affecting his entitlement to state benefits.

Ihsan Ali
I Will Solicitors

The Will becomes a publicly available document after probate, at least to anyone who searches for it and is not the late Duke of Edinburgh.

Declarations are no longer available as repealed by Sch 2 Civil Evidence Act 1995. Letter of Wishes could contain the chosen text.

Publicity is similarly the problem with a non-contest clause so LOW could recite the circumstances leaving the Will to provide a legacy conditional on no contest.

Jack Harper

Assumes the disabled child won’t decide they’d like their inheritance please!

Richard C. Bishop
PFEP

With regard to Malcolm’s comment about a local authority having no standing in an I(PDF)A claim, it is not unknown for an LA to initiate a claim and nominate one of its officials as the litigation friend to act on behalf of the person in the LA’s care. This doesn’t often happen, I agree.

Paul Saunders FCIB TEP

Independent Trust Consultant

Providing support and advice to fellow professionals

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