Lauren Day
Partner, Solicitor & Head of Dispute Resolution
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Date Published:04 Nov 2016 Last Updated:13 Apr 2021

Inheritance Act Claims: An Overview

Dispute Resolution

The principle of ‘freedom of testamentary capacity’ or, in English, a person’s right to leave their assets to whomever they please when they die, has recently risen in the public consciousness. This is mainly as a result of a number of legal decisions that have made their way into mainstream media, most notably, the case of Illott v Mitson.

In that case the courts have (at present but the matter is now being heard by our highest court in December 2016) awarded the claimant daughter a significant share of her mother’s estate despite her relationship with her mother being entirely estranged for decades and the daughter’s admission that she did not hold an expectation to receive any inheritance.

Many people are (perhaps understandably) alarmed by the court’s decision in Illott v Mitson as it reveals the potential for the courts to interfere in the most private of a person’s decisions in a way which is difficult to reconcile. How can it be that a judge is able to look behind a Will that has been properly created and carefully considered by an individual who is no longer alive to explain or defend their decision?

The above mentioned case relates to a claim under the provisions of a statute, the Inheritance (Provision for Family and Dependants) Act 1975. Whilst the act was passed into law many decades ago, the case law which guides the courts in determining such claims is still developing.

The number of Inheritance Act claims reaching the courts has been increasing year on year. Whilst it is only open to speculate as to why this area of law continues to grow, it is generally agreed this is in part due to: more complex family relationships, second or third marriages, the significant increase in the size of an average estate and, perhaps most critically, people being less intimidated by the prospect of litigation.

It is only possible for certain categories of people to bring a claim under the Inheritance Act, namely:

  1. Husband / Wife / Civil Partner
  2. Former Husband / Wife / Civil Partner not remarried
  3. Partner not married and lived with deceased for 2 years immediately before death
  4. Child (whether biological or not)
  5. A person treated as a child of the deceased
  6. Any other person who was financially dependant on the deceased

The main question then to be answered is whether the deceased has made reasonable financial provision, i.e. have they left the claimant with sufficient financial support either in their Will or, if there is no Will, under the rules of intestacy.

The relevant considerations for determining that question are different for each category of person. However, as no two situations/relationships are the same, the case law which explains and guides the answer is varied and, on first reading, can appear contradictory.

For this reason it is vital that an applicant or defendant to such a claim seek specialist advice – a good kite mark for selecting a firm in this type of matter is membership of the Association of Contentious Trust and Probate Specialists (ACTAPS). Most members of this organisation have completed a two year diploma and also demonstrated to the supervising body that they have extensive experience in advising upon disputes of this type. I am pleased to say my team at Ellis Jones now has three solicitors either accredited or training with ACTAPS.

To elaborate upon the above, in a series of 6 blogs, I will be exploring the relevant considerations for each category of claimant and providing guidance for anyone bringing or defending such an action.

If you wish to discuss any of the issues arising from this blog please feel free to contact me at lauren.day@ellisjones.co.uk or 01202 057760.