There were 122 contested probate claims in 2023. A rise from 2022, when there were 117. Law firms are receiving more and more enquiries concerning contesting Wills, and how to receive a benefit from a deceased’s estate who dies intestate (without a Will). Some of these claims are brought by those who feel that they have not been fairly provided for under the Will of the deceased pursuant to the Inheritance (Provision for Family and Dependants) Act 1975 (“the Inheritance Act”). It should be noted, these claims are distinct from claims where beneficiaries have not received their share of an Estate by way of the intestacy rule or terms of a Will, which would be covered under the Administration of Estates Act 1925 (“the Estates Act”).
Time Limits:
A claimant under the Inheritance Act only has six months from the date Probate is granted (or letters of administration were filed) to the Executor/Administrator of the Deceased’s estate.
If a named beneficiary (or beneficiary pursuant to the intestacy rules) has not received their entitled share of an estate, then they have 12 years of the right to the interest arising, to bring a claim pursuant to the Estates Act.
Entitlement to Claim under the Inheritance Act:
Those entitled are defined in section 1 of the Inheritance Act, but generally, they are:
- a child of the Deceased;
- a spouse/civil partner of the Deceased;
- someone who by marriage/civil partnership was treated by the Deceased as a child of the family;
- someone who immediately before the death of the Deceased was being maintained, either wholly or partly, by the Deceased; and/or,
- a former spouse who has not yet re-married.
Reasonable Financial Provision:
Claimants will need to show that what they are claiming will be sufficient for them to meet their living costs. A claim cannot be brought solely on the premise that the beneficiary feels “left out” and/or feels entitled to a larger share of the estate than they have been provided with. Any claim needs to show a need for maintenance.
In Lewis v Warner [2017] EWCA 2182 (Civ), the Court ruled that maintenance was not just financial benefit, and there is a degree of flexibility for the courts to grant creative orders on behalf of claimants.
All relevant circumstances:
Claimant will need to show that the maintenance they are seeking is reasonable. If they are, for example, a well-paid professional who owns their own property (notwithstanding any mortgage charged against it), or has a spouse who is also a high earner, then the courts will not likely grant an order for any maintenance.
If, however, the claimant is, for example, living in rented accommodation, has a low paying job and can prove they are struggling to survive, then they may be able to make a claim against the estate of the deceased (subject to satisfying Section 1 of the Act).
Some of the factors to be considered are:
- The size of the estate
- The financial position of the claimant and his/her needs
- The financial position of the beneficiaries and their needs
- Did the Deceased have any obligations to the claimant?
- Does the claimant have a disability?
- Are there any other claims against the Deceased’s estate?
Case Law
The claim of Ilott v Mitson [2017] UKSC 17 went to the Supreme Court. It concerned a mother (“the Deceased”) who, in her Will, left her entire estate to animal charities despite having a daughter.
The deceased’s daughter was estranged from the Deceased when the daughter was 17. The Deceased wrote a letter of wishes accompanying her Will, noting that the executor must fight any court action from the daughter, and that she did not want her to receive anything.
The daughter made a claim anyway and was originally awarded £50,000.00 by the Court. This decision was then appealed because it would mean that she would lose her right to claim welfare benefits (as she had been doing), and she would not have enough to purchase a property.
The Court of Appeal subsequently awarded the daughter £163,000.00, of which £20,000 was given in cash (low enough so that the daughter did not lose her right to claim universal credit/benefits), and the other £143,000.00 was so that she had enough to buy a property. As the daughter did not own her own home, and was living in government-funded housing, the court decided that it was reasonable for the daughter to receive enough money so that she was no longer homeless.
The appeal decision was then further appealed, and the Supreme Court reversed the Court of Appeal’s decision back to the High Court’s original award. The daughter was awarded £50,000.00 on the basis that, perhaps annoyingly, the Supreme Court failed to provide sufficient explanation on their decision so as to give practitioners practical guidance on how to assess claims in the first instance.
Testators (i.e. those who are making a Will) should be confident that their wishes will be upheld. However, testators should also consider the Inheritance Act when making their Will, so as to avoid their beneficiaries having to fund a legal battle in the future.
Costs of disputing a Will
If a dispute (concerning even a moderate estate of around £500,000.00) goes to a full trial, costs can easily become disproportionate to the value of the claim. On that basis, depending on the value of the estate, all parties should take a pragmatic view early on.
Griffin Law is a dispute resolution firm comprising innovative, proactive, tenacious and commercially-minded lawyers. We pride ourselves on our close client relationships, which are uniquely enhanced by our transparent fee guarantee and a commitment to share the risks of litigation. For more details of our services please email justice@griffin.law or call 01732 52 59 23.
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