Challenging a Will: assessing a claim for insufficient provision

By Lauren Mackenzie, Senior solicitor specialising in Dispute Resolution and Mediation.

Following on from the last article, it is important to consider the criteria that the Court will need to take into account when assessing any claim being brought for insufficient provision.  Section 3 of the Inheritance Act 1975 provides the detail, but there has been subsequent case law – such as the Supreme Court decision in Ilott v Mitson – from which further guidance can be obtained.  However, in summary the main criteria to be considered are:-

1. The financial resources and needs of the claimant for their immediate requirements and potential future requirements
2. The financial resources and need of any other claimants
3. The financial resources and need of the beneficiaries who are due to inherit under the terms of the Will
4. Obligations and responsibilities of the Testator towards any applicant or beneficiary
5. Size and nature of the estate
6. Whether there is any mental and/or physical disability suffered by any applicant or beneficiary
7. Any other matter considered relevant by the Court, which can include the conduct of the deceased, any applicant and beneficiary.  This is unlikely to mean the Court revisiting a marriage breakdown or the conduct during that particular period, unless the financial arrangement between the deceased and a former spouse had yet to be resolved
8. If a claim is being brought by a spouse, civil partner, former spouse, former civil partner or cohabitant then the additional following factors will also be taken into account:-
   i.  Age and duration of the marriage, and whether or not there is a reduced life expectancy for the survivor
   ii. Contributions made by an applicant to the welfare of the family of the deceased

In the cases of a spouse or civil partner the question as to how the estate might have been distributed if the marriage ended in divorce, rather than death, will also be considered.

In the cases of children, the education or training that was being received at the date of death, and what they might have expected to receive in the future, will be factored in.  For example, if a child was receiving private education it is likely that the Court would consider that this should continue.

In the case of an applicant who is an individual treated as a child of the family, then the deceased’s arrangements for his or her maintenance will be taken into account, as will the other resources and obligations of others to maintain the applicant.

Finally, in relation to claims being made by dependants, the Court will consider the length of time that maintenance and support was being provided for.

As can be envisaged, there is no set a formula that can be applied when considering how matters might be resolved.  Guidance and advice should be sought and, as is the case with most litigation, it may be best to try and resolve matters by compromise.  For advice about bringing or defending such claims, please contact us.

Please note the contents of this blog are given for information only and must not be relied upon. Legal advice should always be sought in relation to specific circumstances.