How to contest a Will – bringing a claim against the estate under the Inheritance (Provision for Family and Dependants) Act 1975
- This blog follows on from our brief guide dealing with disputes over the validity of a Will. It will probably be helpful if you read that before reading this! However in general whereas if you contest a Will’s validity you are not accepting it as a legally valid document, a claim under the Inheritance (Provision for Family and Dependants) Act 1975 is only made after a Will has been accepted as valid by the Court Probate Service and can only in fact been made once a Grant of Probate has been obtained. In effect, it is a claim against the estate for financial provision. It is not a true Will contest claim or will dispute
A claim under the Inheritance Act is founded against a background of an individual’s right to leave his or her estate as he or she sees fit. In other words each of us has a right to leave our money and assets to any individual, charity or other corporate or legal body. Battersea Dogs Home or a hospital or charity are often chosen and in place of the individuals own children!!
- I am often approached by children of a deceased who believe they have a right to their parent’s estate. There is no such right in law!!
- A claim then under the Inheritance Act by one of the list of potential claimants granted the right to bring such a claim by (section 1) the Act, doesn’t necessarily lead to an award. The Court has a wide discretion in relation to such claims and will strain to uphold the wishes of the deceased. However there are particularly favoured applicants – generally the husband or wife of the deceased. The law grants a husband or wife legal rights to their spouse’s assets, rights which are upheld by the courts during a divorce. Under the Inheritance Act then the Court is obliged to weigh the financial provision a wife or husband might have received on divorce against what was left by the terms of the Will. If inadequate a claim can be made.
- Adult children in general are not favoured applicants under the Inheritance Act, in particular those of working age. Case law (ie old cases where decisions about financial provision for children have been made) tends to indicate that there must be a special reason (or overriding moral obligation) other than ones ordinary duty to one’s children to persuade a Court to make an award. However this is always denied by Judges dealing with these claims. Don’t believe them!! For further reading (!!!) have a look at Heather Ilott v David Mitson and others (look it up at http://www.bailii.org). This is an unusual case where it would appear an unfavourable claim (by an adult child who had no real relationship with her mother and who had survived on benefits all of her adult life) was successful. However, it is doubtful this will make much difference to the way these cases are dealt with. Closer scrutiny of that case shows the Court of Appeal were merely affirming the District Judge’s reasoning (was reasonable) – a District Judge initially heard the claim which was appealed.
- What is a special reason?? I will deal with this next week.