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News & Insights

Beviss and Beckingsale
Emma Northover

Contested Probate

Posted by Emma Northover on June 10th 2011 in All , DISPUTES AND CLAIMS .

A loved one has died, but left you nothing.  Can you do something about it? Maybe.  The will might be open to challenge on one or both of the following grounds:

  • Lack of testamentary capacity, “knowledge and approval”, undue influence, or conflict with lifetime promises by the deceased
  • Under the provisions of the Inheritance (Provisions for Family and Dependants) Act 1975 (“the 1975 Act”)

As claims under the 1975 Act have been the subject of a very recent - and somewhat surprising - decision of the Court of Appeal, I shall in this article deal with the subject of 1975 Act claims, and deal with other grounds of challenge in our next quarterly newsletter.

The 1975 Act defines those categories of people who can challenge someone’s will if it fails to make reasonable financial provision for them.  They are spouses, partners, children and those who have been financially supported by the deceased.

In recent months the 1975 Act has hit the headlines following the Court of Appeal decision in the case of Ilott -v- Mitson and others, where it was held that the independent adult daughter of the deceased was indeed entitled to financial provision from her mother’s estate, despite the fact that her mother had left a detailed note explaining why she had disinherited her daughter.  

Whilst the law provides people with this opportunity to challenge wills there are a number of factors which must be taken into account by the Court before an award like this can be made.

If the Court finds that reasonable provision has not been made for the person seeking to challenge the will, the Court will decide whether or not to exercise its powers, and to what extent, in order to make appropriate financial provision.

The Court in Ilott -v- Mitson considered that the fact the daughter was on benefits and had little in the way of earning potential, was relevant to the need for some provision to be made for her.  The Judge commented that although she did not expect to receive anything from her mother, the situation whereby she did not receive anything was unreasonable.  Further, in reaching its decision the Court noted that the mother had no real connection to the animal charities which had been set to otherwise inherit almost all of her estate.

Some may consider this position unsatisfactory, on the basis that people can choose how they deal with their finances in life, yet apparently they do not have the same freedom to do this on death.  One thing that the Courts have made clear is that each case will turn on its own facts and it is therefore important that anyone facing difficulties in relation to this area of law obtains legal advice at the earliest opportunity.

If you have any queries regarding a possible claim against the estate of someone who has died then please contact either myself on 01404548050 or by email to emma.northover@bevissandbeckingsale.co.uk , or my colleague, Stephen Fisher Crouch on 01404 548050 or by email to stephen.fishercrouch@bevissandbeckingsale.co.uk .