Although formal readings of wills to avaricious relatives may be more common in fiction than in the high street, enquiries from clients who have not inherited what they believe to be their entitlement arise from time to time in most practices, and among the most difficult cases are those where the client is an adult child of the deceased.The 1975 Act provides a statutory framework which permits applications within six months of the date of representation by spouses, former spouses who have not remarried, children, persons treated as children by, or being maintained by, the deceased and persons living in the same household as husband or wife of the deceased for two years prior to the date of death (s.1).

The orders which can be made include lump sums, periodical payments, transfers or settlements of property, variation of pre-existing settlements and orders for the acquisition of property (s.2).Reasonable provision, pleaseThe application must be for reasonable financial provision from the estate.

In the case of a husband or wife, this can be any reasonable financial provision in the circumstances of the case, whether or not it is required for maintenance but in other cases the requirement must be for maintenance (s.1(2)(b)).

This provision is the source of much of the difficulty which faces the adult child applicant.The mere facts of a blood relationship and assets in the estate are not enough (Re Coventry deceased [1979] 2 All ER 408).

The applicant must show that the deceased has not made such provision as would be reasonable in all the circumstances for the applicant to receive for maintenance.The adult childNor has t his been the end of the problems for the adult child applicant.

Although s 3(1)(d) of the Act requires the court to take into account the obligations and responsibilities which the deceased had towards the applicant, other earlier authorities introduced additional hurdles for the applicant to overcome even if it could be shown that there was a need for maintenance.In Re Jennings deceased [1994] 3 All ER 27 the Court of Appeal held that obligations for the purposes of s 3(1)(d) only referred to obligations which the deceased had immediately before his death and not, say, to neglected obligations during the childhood of the applicant.

Following Re Coventry a mere blood relationship was not enough to justify an order under the Act.

Where the application was by an adult child of the deceased able to earn, and earning his or her own living, there must be some special circumstance, typically a moral obligation of the deceased towards him or her, before it can be held that the deceased had acted unreasonably.

The wish of an applicant to discharge his mortgage did not constitute a reasonable requirement for maintenance.However, more recent decisions have revealed that the courts will go to considerable lengths to do justice to applicants in special cases and will also take a more relaxed view both on the issue of special circumstances and of what can be classified as provision for maintenance.A recent example of a special circumstances case is Hanbury v Hanbury [1999] 2 FLR 255.

The applicant was the adult daughter of the deceased aged 45 but with a mental disability which gave her a mental age of 12.

The deceased had been paying her maintenance under a court order prior to his death but only left her a small legacy in his will, having diverted most of his assets by transferring them into the sole name of his second wife or by vesting them in the second wife and himself as joint tenants.The court held that these dispositions were within s 10 of the Act and that the court could require those assets to be made available for the purpose of meeting an award under the Act.

The total available assets were therefore £60,000 and provision for the applicant would take the form of a discretionary trust with a capital fund of £39,000.The changing approach to the need for special circumstances is illustrated by Espinosa v Bourke [1999] 1 FLR 747 in which the Court of Appeal reviewed the earlier authorities and held that:-- All the criteria in s 3(1) must be applied in each case;-- Obligations for the purposes of s 3(1)(d) include both moral and legal obligations;-- An adult child with a job or a capacity to work would nevertheless have to identify a weighty factor to establish a failure to make reasonable financial provision.

Typically, this could be done by showing some obligation owed by the deceased.The application of these limited relaxations of principle might not always be easy and it is therefore instructive to look at the facts of some of the recent cases and the awards made.In Re Abram D/D [1996] 2 FLR 379 ChD, the applicant son had lived at home and had worked for the deceased for minimal wages.

On attaining the age of 25, he had left home in order to marry.

When aged 34, he stopped working for the deceased, whereupon he was disinherited.By the date of the hearing, the son was subject to an individual voluntary agreement, his home had been repossessed and he was unemployed.

The terms of the IVA provided that any capital obtained from the estate would go to the creditors.

The court held that on the facts there was a sufficient, even overwhelming, element of moral obligation.However, a provision of capital which would go to the creditors was outside the requirement for maintenance.

The appropriate order would be for settlement of half of the estate on trusts under which the son would initially have a life interest determinable on his bankruptcy, and thereafter the capital would be held on discretionary trusts for the son and his family.In Espinosa v Bourke, the applicant daughter had initially given up her job in order to care for the deceased but had later moved to Spain, where she had married, leaving the deceased in the care of her son and a cleaner.Having been expressly excluded from the will, the daughter made an application which was based in part on a promise made by the deceased to his wife, who had predeceased him, that he would leave the wife's portfolio of shares to the applicant.The Court of Appeal held that the judge below had concentrated too much on the absence of a sufficient moral obligation and had paid too little attention to the applicant's financial needs and limited earning capacity.The conduct of the applicant, which could be regarded as irresponsible, was a relevant factor but did not outweigh the other considerations.

The applicant was awarded a lump sum of £60,000 to discharge her business debts in order to enable her to derive an income for the future from a business which was no longer burdened with debt.An argument for next yearWhile the recent decisions on this category of application show some relaxation of principle and a readiness to capitalise provision for maintenance, the adult child applicant continues to face the hurdle of s 1(2)(b).

The only substantive legislative change to the Act so far has been the introduction of S1A in relation to unmarried partners by the Law Reform (Succession) Act 1995.Parliament appears to have no plans at present to improve the lot of the adult child by amending legislation but it will be interesting to see whether it is argued under s.4 of the Human Rights Act 1998 that s 1(2)(b) is incompatible with, for example, articles 8 and 14.