How Hard Is It for an Adult Child to Bring a Claim for Financial Provision Under the Inheritance (Provision for Family and Dependents) Act 1975

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

There are limited grounds to dispute or contest the validity of a Will. By far the most common is a claim by an adult child 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)

If brief, in England and Wales, a parent is not obliged to leave his or her estate to their child – they can leave everything to a stranger if they see fit. This is called “freedom of testamentary disposition”. However to eliminate the difficulties this can cause (eg. where a parent dies leaving minor children disinherited) Parliament legislated to create an Act called, as mentioned, the Inheritance (Provision for Family and Dependants) Act 1975 which could enable a Court to make financial provision for, for instance, a needy child. A minor child falls within the category of so-called favoured applicants under the Act (along with wives or husbands!). A claim by an adult child is much more difficult to justify in Will claim, Will contest or Will dispute claims. Quite simply the law (Judges) seem to regard adult children as inherently independent and therefore capable of providing for themselves. Reluctantly it seems courts have come to the realisation that many are not and will never be capable of being completely independent. In this way then and in Will contest and Will dispute claims, adult children began to find they could succeed in such claims under the Inheritance 1975 Act.

The issue was aired in great detail in the UK Supreme Court in Ilott v Mitson (The Blue Cross and others)( https://www.supremecourt.uk/cases/uksc-2015-0203.html). The conclusion? Yes adult children can bring such a Will claim and/or contest a Will in this way, but the person who made the Will could provide sufficient justification for disinheriting his child to defeat such a claim where the child was not altogether blameless (for instance for an estrangement) or if the child couldn’t establish a “moral” justification to his/her claim ie something more than just a financial ground (the usual reason given is that “I am poor, in need, and therefore I must be entitled to a share of the estate). The Court said “no”, that on its own is not sufficient.

However a succession of cases both before and after Ilott above have stated in fact there is no moral requirement in the 1975 Inheritance Act in relation to Will dispute and Will contest claims. This is absolutely right. The grounds for any claim under the 1975 Inheritance Act must reflect the issues mentioned by section 3

(1). Under this section a Court considering such a claim, must consider a relatively limited menu of grounds justifying an application for financial assistance from a deceased parent’s estate. I have cut and pasted the relevant grounds below:

(a)the financial resources and financial needs which the applicant has or is likely to have in the foreseeable future;

(b)the financial resources and financial needs which any other applicant for an order under section 2 of this Act has or is likely to have in the foreseeable future;

(c)the financial resources and financial needs which any beneficiary of the estate of the deceased has or is likely to have in the foreseeable future;

(d)any obligations and responsibilities which the deceased had towards any applicant for an order under the said section 2 or towards any beneficiary of the estate of the deceased;

(e)the size and nature of the net estate of the deceased;

(f)any physical or mental disability of any applicant for an order under the said section 2 or any beneficiary of the estate of the deceased;

(g)any other matter, including the conduct of the applicant or any other person, which in the circumstances of the case the court may consider relevant.

There no mention of moral claim anywhere. Quite obviously then, this helps creates considerable risk for each side to a Will contest and Will dispute claim, since the position seems so uncertain. It has helped to encourage these claims (by adult children). I consider this further in my next blog.

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.