Probate lawBy Lesley King, College of Law, LondonInheritance (Provision for Family and Dependants) Act 1975.

Application by deceased's spouseElizabeth Adams v Julian James Lewis (Administrator of the Estate of Frank Adams, deceased) LTL 6/2/2001

This case will be of interest to those making family provision applications on behalf of spouses.Spouses are entitled to make applications if reasonable provision has not been made for them.

The court has to consider various statutory guidelines, including the duration of the marriage, the contribution made by the applicant to the welfare of the family, and the provision which the applicant might reasonably have expected to receive if the marriage had ended in divorce.In the present case the deceased had been married to the claimant for 54 years and they had had 12 children.

There had been one separation of 18 months.

The deceased left her the household goods, his personal effects and a legacy of 10,000.The claimant contended that this was not reasonable and wanted the family home.

Three of her daughters opposed this.

They accepted that the provision made was not reasonable, but argued that the house was too big for her.Judge Behrens held that the will did not make reasonable financial provision for the claimant bearing in mind the duration of the marriage and the great contribution made by the claimant in caring for 12 children and looking after the home and the needs of the deceased.He accepted Re Besterman 1984 1 Ch 458, which laid down that the amount a spouse would have received on divorce is a very important factor, but not the only factor.

However, he said it was 'a most important' factor in a case such as this.

A divorce court would have been looking for a clean break.

He referred to the recent decision of White v White [2001] 1 All ER 1 and said there was no reason here to depart from the principle of equality.

He ordered that the family home pass to the claimant, but he reduced her pecuniary legacy to 5,000.In a family provision claim a spouse may well get more than would have been the case on divorce, particularly in small estates.

In Re Krubert [1997] Ch 97 Lord Justice Nourse approved the Re Besterman approach that divorce provision was only one factor, saying: '...On a divorce two parties had to be provided for: on death there was only one.'In Angelo Perotti v Kenneth Corbett Watson & Others, LTL 2/2/2001 the Court of Appeal approved the 'pragmatic' approach of judge Rimer, who had, despite accepting that some of P's criticisms of the administrator's conduct were justified, refused P's application to remove the administrator under section 50(1) of the Administration of Justice Act 1985.

No other suitable person could take on the administration, and it was therefore in the best interests of the estate to let the administrator continue.Because the judge had accepted relatively few of P's criticisms, it was appropriate for him to have awarded three-quarters of the administrator's costs against P, with an indemnity out of the estate insofar as those costs were not paid by P.