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HOW TO CONTEST A WILL – HOW THE ADULT CHILD CAN BRING A CLAIM FOR FINANCIAL PROVISION UNDER THE INHERITANCE (PROVISION FOR FAMILY AND DEPENDANTS) ACT 1975

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HOW TO CONTEST A WILL – HOW THE ADULT CHILD CAN BRING A CLAIM FOR FINANCIAL PROVISION UNDER THE INHERITANCE (PROVISION FOR FAMILY AND DEPENDANTS) ACT 1975

In my previous Blog on this topic, I described that there are limited grounds to dispute or contest the validity of a Will and how an adult child can do it by bringing a claim for financial provision from his or her parent’s estate, pursuant to section 2 of the Inheritance (Provision for Family and Dependants) Act 1975 (see https://www.legislation.gov.uk/ukpga/1975/63)

I described the difficulties; an adult child seems to have to bring more to the table other than simply, “here I am, I am poor, therefore the estate must provide”. A moral claim justification has been held to apply, but that too has been watered down as there is no mention of any such requirement in the 1975 Inheritance Act. Nevertheless, it has been described as an element of a Will contest and Will dispute claim under the Inheritance Act 1975, so one cannot ignore it.

Given so, what does “moral claim” in Will dispute/Will contest claims under the Inheritance Act 1975 mean? It is difficult to be specific as each claim is completely different, but having discussed this with Barristers and from my own experience, I can say with reasonable certainty that it appears to involve:

• Broken promises by the deceased
• Conduct on the part of the deceased such as caring for the deceased for a considerable period and at considerable cost, but then finding oneself disinherited
• Conduct on the part of the deceased which might have led to the adult child finding himself (or herself) poor and in financial need (eg. abuse during childhood and/or a failure in parental control leading to health issues once the child became an adult)
• In other words some fault or action on the part of the parent which has helped caused his or her adult child to have some financial need

As already described, whilst useful, it is not absolutely necessary to bring forward a “moral claim” to prove your case for contesting the Will and/or disputing the Will under the 1975 Inheritance Act (as an adult child). Act”). For reference see Nahajec v Fowle [2017] Lexis Citation 270 (https://swarb.co.uk/nahajec-v-fowle-misc-18-jul-2017/) and Ball v Ball [2017] EWHC 1750 (https://swarb.co.uk/ball-and-others-v-ball-and-others-chd-2-aug-2017/).

The learned judges in Nahajec and Ball both make reference to Lord Hughes’s finding in Ilott v Mitson (https://www.supremecourt.uk/cases/uksc-2015-0203.html) (at [20]) that a “moral claim” is not a precondition of an award. As HHJ Matthews summarised the point (Ball v Ball), “need” is still not enough on its own and that there must be some further factor,
which may be a “moral claim” or some other circumstance. The ultimate question is whether it is reasonable for the applicant to be left without maintenance.

In Nahajec the adult child’s claim succeeded. The applicant was age 31, in straitened financial circumstances (working on zero hours’ contracts, with debts (£6600 – see para 94(c)), had an aspiration to train as a veterinary nurse and had no teenage or adult relationship with her father the decease save for a reconciliation during two years 8 years before. The lack of relationship was despite efforts by the applicant to make contact (see para 63 of the judgment). The estate with a net value of £265,710 was left to a friend of the deceased, the defendant, who also had money problems (see para 90). The award was £30,000. In addition to finding that the applicant’s desire to train as a nurse was a factor which made the lack of any provision unreasonable (at para 88), HHJ Saffmann found that so also was the fact that the applicant had sought a relationship (at para 86).

In Ball the net estate was £157,000 (see para 98). The deceased had 11 children and a grandson (see para 1). There were 3 claimants and so the difference between the estate being divided 12 ways (i.e. with the claimants included equally) or 9 ways (without the claimants) was only £4,361. The deceased, who was the mother, had excluded the claimants because they had reported their father to the police for sexual abuse (para 2). HHJ Matthews refused to characterise this decision as bad behaviour taking into account the standards of the time it was made (para 82). There was no significant discrepancy between the means of the claimants and the defendants (para 84) and an award could make little difference anyway (para 86). No award was made.

If you consider that any of these facts and matters are likely to apply to you, or you would like to ask us for more information about our no win no fee arrangement, or you simply want us to assess your claim, then please do not hesitate to contact us for a confidential no strings chat..

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