If someone’s will (or lack thereof) does not leave a certain class of people with reasonable financial provision, a claim may potentially be made under the Inheritance (Provision for Family and Dependants) Act 1975 (‘the Inheritance Act’). But what does ‘reasonable financial provision’ actually mean? In the first of a regular series from 42BR Barristers, Tom Gilchrist explores the concept, and the recent relevant decision in McDaniel v Talbot & Anor [2026] EWHC 928 (Ch).
English law puts significant weight on ‘testamentary freedom’; the right to dispose of one’s property as they please via a will. Other legal systems, like our continental cousins, tend to have more hard and fast rules on who gets what. However, if a person in England fails to create a will, only then is their estate distributed via the default intestacy rules.
While a court does not have the ability to ‘re-write’ a will, England does have a limit on testamentary freedom – the Inheritance Act.
Legislation
Section 1 of the Inheritance Act lists the classes of people who can make a claim for reasonable financial provision. Section 2 goes on to define different levels of provision that can be claimed, depending on the specific class. For most applicants, it is financial provision as it would be reasonable in all the circumstances of the case for the applicant to receive for their maintenance.
However, for spouses and civil union partners, provision is what as it would be reasonable in all the circumstances of the case for a spouse or civil union partner to receive, whether or not that provision is required for their maintenance. Therefore, spouses and civil union partners will likely receive more generous provision than the other classes of applicants.
What is ‘maintenance’?
If an applicant is not a spouse or civil union parter (e.g. a child of the deceased), their reasonable financial provision will be tied to ‘maintenance’. The leading case dealing with the issue of maintenance is Ilott v The Blue Cross & Ors [2017] UKSC 17. While there will likely be overlap between them, Ilott stated that there is essentially a two-part test:
- Did the will/intestacy make reasonable financial provision for the applicant; and
- If not, what reasonable financial provision ought now be made for them?
The test is not whether the deceased acted reasonably in how they distributed their estate via their will, although conduct can potentially be taken into account at a later point. The issue is therefore what is reasonable for the applicant to receive (if anything).
Ilott also made clear that maintenance cannot extend to any or every thing that would be desirable for an applicant to have. Maintenance connotes payments which directly or indirectly enable the applicant in future to discharge the cost of their daily living at whatever standard is appropriate to them. The provision is to meet recurring expenses, not to provide a windfall or to simply reward meritorious behaviour.
This does not mean that all orders are for periodic payments. There are many orders available, inciting lump sums, transfers of property and awarding a life interest in property. While a court is more likely to order a life interest in a property than an outright transfer to an applicant, this is not an absolute rule. The level of ‘maintenance’ will clearly be flexible and will depend on the needs of each individual applicant.
Considerations
When considering what is reasonable financial provision (and what will constitute ‘maintenance’), the court will take into account a number of factors, including those at s.3(1) of the Inheritance Act, being:
- The financial resources and financial needs which the applicant has or is likely to have in the foreseeable future;
- The financial resources and financial needs which any other applicant has or is likely to have in the foreseeable future;
- The financial resources and financial needs which any beneficiary of the estate of the deceased has or is likely to have in the foreseeable future;
- Any obligations and responsibilities which the deceased had towards any applicant or towards any beneficiary of the estate of the deceased;
- The size and nature of the net estate of the deceased;
- Any physical or mental disability of any applicant or any beneficiary of the estate of the deceased;
- 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.
Abled adult children
Lady Hale (with whom Lord Kerr and Lord Wilson agreed) in Ilott looked at previous research and proposals and pointed out the unsatisfactory position the law was in in relation to adult children and whether they were deserving or undeserving of reasonable maintenance.
Ilott confirmed that there is no need, in of itself, for a ‘moral claim’ to be required for an applicant to bring a claim. However, per Re Hancock (1998) 2 FLR 346, it may be difficult for a child who is able to earn their own living to show that reasonable financial provision has not been made for them without some special circumstances such as a moral obligation. Such moral obligation may be taken into consideration at s.3(1)(g) of the Act.
It might be difficult for an adult child who does not suffer from any physical or mental disability to make a successful claim; at least it seems unlikely to be substantial. It appears that, when an applicant is an able adult who can make their own way financially in the world, something more than the qualifying relationship well be needed to create a claim, and that the additional something might have to be a moral claim.
Some moral claims could be where a child works in a family businesses and was expected to inherit, like in Re Campbell [1983] NI 10, where a son lived and worked on his father’s farm his entire adult life. Another claim could be similar to the case of Re Abram [1996] 1 FLR 379, where a child worked in the deceased’s business for low wages. Unfortunately, it will likely all depend on the facts of the case.
What does this mean for you?
The Inheritance Act does not give the courts a power to rewrite the wills. However, it does allow the court to give a certain class of people ‘reasonable financial provision’. This provision will be relatively more generous for spouses and partners; in principle, a widow or widower should not be worse off in death than in divorce.
However, other applicants can only apply for reasonable financial provision which equates to maintenance. While lump sum orders or property transfers are possible, the court is only supposed to make orders that relate to discharging the cost of an applicant’s daily living.
There will often be many competing claims, especially if there is a modest estate. It appears that, if an adult child is well-off enough, it might be possible to successfully disinherit them. Any court will have to take a broad-brush approach and often at times make a value judgment on the evidence before them.
Ultimately and unfortunately, each application will be decided on a case-by-case basis. Therefore, it is critical that you get timely legal advice, whether you are wanting to create a will or whether you want to make a claim against an estate.
McDaniel v Talbot & Anor
McDaniel v Talbot & Anor is interesting, as it dealt with the issue of an adult child making a claim to a deceased parent’s estate.
The facts of the case
Ms McDaniel (pictured) was the daughter of the deceased, Mr Talbot. Apart from one or two encounters at Ms McDaniel’s paternal grandmother’s house and a single phone call from Ms McDaniel to Mr Talbot when she became pregnant at 16, the two were estranged from when Ms McDaniel was eight months old. The estrangement was due to the decision of Mr Talbot.
Mr Talbot later started a relationship with another woman, Rosemary Talbot, and married her in 2013. His will was dated 2014 and essentially disinherited Ms McDaniel and her brother. It was stated that he did not want to leave them anything due to the estrangement. The will essentially left everything to Mrs Talbot.
Ms McDaniel finished school at 16 without any qualifications but did attend college part-time at around 19-20 years old, where she completed her GCSEs and obtained a level 3 diploma. In her final year, she fell pregnant again and had a second child.
Her first child had ADHD, autism and dyspraxia. He also had a number of mental health issues. Her second child had Downs Syndrome and a number of other disabilities. Ms McDaniel went on to graduate with a BSc Hons in Psychology. She received her Master’s in 2015. Ms McDaniel’s second child was unwell and had heart surgery in 2012. He also had to be home educated for a time due to his complex needs.
In 2019, Mr Talbot called Ms McDaniel on his own volition. They then spoke a few more times via telephone. They then met for the first time in years. A photo of the two of them from that day was the only photo on Mr Talbot’s phone the day he died.
After this meeting, they spoke on the phone more, and met more often. She joined him on a holiday at his villa in Portugal. There was even talk of Ms McDaniel and her family moving in with Mr Talbot. While there was a rift about Ms McDaniel’s brother (Mr Talbot’s son), this was soon mended.
When Ms McDaniel married in 2022, Mr & Mrs Talbot were invited to the wedding. While Mr Talbot did not attend, partly due to mobility issues, he sent a card and a cheque for £1,000.00. In the months before Mr Talbot’s death in October 2022, Ms McDaniel would assist him with medical appointments.
Mr Talbot built up a very successful business, and his estate was worth around £1,574,579.67. Ms McDaniel had established a business herself but was essentially living at subsistence level and had a number of debts.
Caroline Shea KC, sitting as a High Court Judge found that that there were special circumstances in Ms McDaniel’s caring contributions to her own children, Mr Talbot and Mr Talbot’s mother. While being necessitous and having standing was not sufficient for a claim, it was the special circumstances of Ms McDaniel that tipped the balance, making her claim successful. Ms McDaniel was awarded £123,418.47 in total, with a lump sum of £20,263.47 as a lump sum to pay off her debts, with the balance to be held in trust for her to draw down on.
Conclusion
McDaniel v Talbot & Anor [2026] EWHC 928 (Ch) is a timely reminder of the issues that can arise when adult children make claims against an estate. While they may be able to pay their bills as they arise, adult children may have a ‘moral claim’ that tips the balance, enabling their claim to be successful.
All of this needs to be taken into account when considering if a person might have a claim, as well as executors considering defending a claim made by an adult child; there will often times where it is more economical to compromise a claim and settle.
Ultimately, these types of cases will turn on their individual facts. This is coupled by the reality that the court has significant discretion in the remedies that it can order. This means getting legal advice early can be critical.
About the author
Prior to joining chambers, Tom Gilchrist was a barrister in New Zealand, practising mainly in divorce, wills and trusts. He gathered extensive experience quickly, frequently appearing in the District Court, Family Court and the High Court of New Zealand. He also drafted written submissions in the New Zealand Court of Appeal. Tom has practised in England since 2019 and quickly built himself a family property and private client practice. He has frequently appeared in the Family Court, County Court and High Court and has drafted written submissions in the Civil Division of the Court of Appeal. Tom also volunteers for the Chancery Bar Litigant in Person Support Scheme (‘CLIPS’), providing on the day pro bono advocacy representation to litigants in person in application courts. He also is a committee member of the Inner Temple Junior Bar Association, representing barristers under 7 year’s call.
