Challenging a Will under the Inheritance (Provision for Family Dependants) Act 1975)

The passing of a loved one is one of the most difficult times in anybody’s life. One of the most common questions is whether or not a Will could be challenged as individuals are either excluded from the Will in its entirety or they believe are not fairly provided for under that Will.

The Inheritance (Provision for Family Dependants) Act 1975 (“Inheritance Act 1975”) allows for a legislative mechanism to consider such issues. The Inheritance Act 1975 does not require a subjective assessment of the merits of any claimant’s potential case. Instead, the crucial question is whether or not, looked at objectively, the Will (or the Intestacy) fails to make any reasonable financial provision for the claimant in all of the circumstances of the case according to the standard that is applicable to that particular claimant.

It is simply wrong to approach the question under the Inheritance Act 1975 from the point of view of whether or not the deceased was morally right or wrong in how they disposed of their Estate. This is perhaps one of the most difficult hurdles to overcome in any of these potential cases as it is an understanding that emotional factors will be placed to one side when considering such cases.

It is important to understand that claims under the Inheritance Act 1975 will always have a burden that will fall upon the prospective claimant so that they have to set out their case for reasonable financial provision at the appropriate standard. The claim will always be considered when assessing the net value of the Estate and looking at the wishes of the deceased (if a Will has indeed been made or if there is a Letter of Wishes in support).

The test for appropriate financial reward will be always that of what is “a reasonable financial provision” as identified in one of the leading authorities Illott v Mitson [2011] EWCA Civ 346.

Henry Chambers is able to offer specialist advice and guidance on the assessment of these cases both to members of the public through the Public Access Scheme or indeed through the instruction of solicitors in the more traditional method.

Henry Chambers can take instructions from both solicitor Firms and members of the public. If you would like to discuss how we may be able to assist, please do not hesitate to email us at info@henry-chambers.com