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Case law: Court clarifies when will-maker has treated someone as a 'child of the family', and can claim against their estate

Neighbours, friends and others claiming they should have been remembered in someone's will, because the will-maker considered them a 'child of the family', must show the will-maker had assumed the position of a parent to succeed in a claim. Merely using words such as 'honorary daughter' is not enough.

October 2018

This update was published in Legal Alert - October 2018

Legal Alert is a monthly checklist from Atom Content Marketing highlighting new and pending laws, regulations, codes of practice and rulings that could have an impact on your business.

The claimant and her husband had lived next door to a reclusive man. He was unmarried, had no partner or children, and was 20 years older than her. After they moved away, she kept in touch and helped him with things – for example, she sent him items such as socks, underwear, cake and marmalade; visited him and helped him register with a GP; and got her husband to take him on a trip to see where his family were buried. Letters the man wrote to her showed how much he appreciated her and how fond of her he was, referring to her in those letters as 'HD', which she said stood for 'honorary daughter'.

However, when he died he did not leave her anything in his will.

Family members and dependents of a deceased, including a 'child of the family', have the legal right, in certain circumstances, to contest the deceased's will on the basis that it does not make 'reasonable financial provision' for them. The test of reasonableness is objective, to be decided by the court.

The claimant argued that she should receive something from the deceased's estate on the basis she was a 'child of the family'. There have been few court decisions on what 'child of the family' means in this context. The judge said that she needed to show:

  • there was a family, and she and the man were both part of it, and
  • the man treated her as his daughter in that family

The judge said merely being kind to him and genuinely caring for him was not enough to make her a 'child of his family'. She needed to show that he had assumed the position of parent to her, with the responsibilities and privileges that come with that role.

The judge also noted that the man had never reciprocated by visiting the claimant (even when she lived next door), or sent her presents as a father would to a daughter. Nor were her visits to him frequent, and she did not have a key to his house to let herself in as a daughter might.

The judge also noted that the man's house was in 'dreadful condition' which 'could only be described as hazardous and unsafe'. It had no central heating or hot water. Yet the claimant had never concerned herself about these things as a caring daughter probably would have done.

Also relevant was the fact that will was a 'do-it-yourself' will: had he wished to change it to include the claimant, this would have been a simple thing for him to do – particularly as there were people he saw weekly who could have acted as witnesses.

The judge therefore rejected her claim that she was a child of the family. She had not even established that there was a family, let alone that he treated her as his daughter within that family. Particularly, his use of the initials 'HD' – even if they stood for 'honorary daughter' – was not enough if not backed up by evidence of parental behaviour.

Operative date

  • Now

Recommendation

  • Neighbours, friends and others claiming they should have been remembered in a person's will, because the will-maker thought of them as their son or daughter, must show the will-maker had assumed the position of a parent in order to succeed – merely using words such as 'honorary daughter' is not enough

Case ref: Wells v Chorus Law and Others (unreported)

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