Considering an Inheritance Act claim

It is not uncommon to hear of cases where claims are successfully brought against the estate of someone who has passed away, where it is decided that the deceased’s estate does not make reasonable financial provision for a particular individual. This can happen in certain circumstances, where the deceased dies domiciled in England and Wales, when a claim is brought under the Inheritance (Provision for Family and Dependants) Act 1975, by one of a specified ‘category’ of individuals, namely:

• the spouse or civil partner of the deceased, or a former spouse or civil partner who has not remarried or entered a new civil partnership;
• someone who lived in the same household as the deceased as though they were husband, wife or civil partner for at least two years prior to the deceased’s death;
• the child (which can include adult children) of the deceased, or someone treated by the deceased as a child of the family; or
• someone who was being maintained (wholly or partly) by the deceased.

The first stage is to see if the individual falls within one of these categories. If they do, then they will still need to be able to show that reasonable financial provision has not been made for them.

How these cases are dealt with and how successful they are is very often a judgement call in terms of whether there is merit in the claim and, if there is, what the value of any potential claim might be. An early appraisal of the claim ‘in the round’ is always sensible and (especially in cases which are more clear-cut) it may be possible to reach a settlement, with or without a court claim being issued.

A range of considerations set out in the Inheritance Act itself are applied in carrying out this exercise and they include: giving thought to the individual’s current and likely financial needs and resources for the foreseeable future and those of other beneficiaries of the estate, any particular physical or mental disability that any relevant party may have, whether the deceased had any particular obligation or responsibility which is relevant, the size and nature of the estate, as well as any other considerations which might be relevant for a court to consider (including conduct). The question of what is reasonable financial provision can also depend on the individual’s relationship with the deceased. 

There is a growing body of case law where the courts have applied the law, which may help in a particular situation and can give a useful steer in terms of which way a court may find if a claim ever made its way to court, or to guide negotiations.

Being pro-active is necessary as there are time limits that apply to claims under the Inheritance Act and an individual will usually need to bring their claim within six months of the date of issue of a grant of representation, after which it is necessary to try and obtain the court’s permission to apply out of time.

If a claim is successful, there are a range of outcomes the relevant parties may either be able to agree or which the court may be prepared to order. These can be quite varied and are obviously case specific, but may include, for example, the award of a lump sum or regular payments, or the adjustment of how a property is owned or perhaps occupied.

Despite the number of headline cases where such claims are brought against an estate, the principle of testamentary freedom enabling people to essentially decide how their estate is to be distributed upon their death does remain relevant. Indeed, giving careful thought to estate planning and leaving a valid will making it clear what someone wants to happen to their estate are still important steps to take, especially as behind the headlines the vast majority of estates are not subject to a claim and a valid will remains of great importance in directing what should ordinarily happen to a deceased’s estate.

It is also worth noting that claims under the Inheritance Act are separate to claims which seek to challenge the validity of a particular will (or wills), which include, for example, where a will lacks the necessary formalities, if it can be shown that the deceased lacked the necessary mental capacity at the relevant time, if a will was prepared in circumstances where it can be shown the deceased was unduly influenced by someone else, if the will fails where the deceased lacked the requisite knowledge and approval of the contents of their will, or in cases of forgery, fraud or where there is a need for rectification. If a will is found to be invalid, then an earlier will can become relevant, or the Intestacy Rules may otherwise apply to determine what happens to an estate. These other types of potential claim would always need to be considered on the individual facts of each case.

Contact our experts

At MacDonald Oates LLP, we have experience of bringing and defending claims for reasonable financial provision and of advising in connection with claims relating to the validity of a will. Members of our litigation and private client teams also include members of the Society of Trust and Estate Practitioners (“STEP”) and the Association of Contentious Trust and Probate Specialists (“ACTAPS”), which highlights the experience we have within the firm of advising clients within these contentious and non-contentious areas of practice.

For further details, please contact the Litigation team on 01730 268211 or via email at 

This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published. Specific advice should always be obtained relating to your own circumstances.