Contested Wills and Financial Provision

Who is able to bring a contested probate claim?

The two most common forms of contested probate claim are challenges to the distribution of an estate, brought under the Inheritance (Provision for Family and Dependents) Act 1975 or a direct challenge as to the validity of the Will itself.

04 Dec 2023

Team name
William Cook

William Cook

As may have been inferred from the wording of the ‘Inheritance (Provision for Family and Dependants) Act 1975’ there are rules within legislation as to who is able to present a claim for the challenge of a Will, which differ from when one seeks to challenge the validity of a Will. We consider who can put forth a claim in respect of each type of challenge below.

Inheritance (Provision for Family and Dependents) Act 1975

If someone have been left out of a Will entirely, or are left a gift that is not sufficient to meet their needs, they could be entitled to make a claim for reasonable financial provision under the Inheritance (Provision for Family and Dependants) Act 1975 (‘the Act’).

Section 1 of the Act defines the groups of people who can seek to claim under the Act. Section 1 lists those groups, which have some complex permutations, as follows:

  • The spouse or civil partner of the deceased;
  • a former spouse or former civil partner of the deceased, but not one who has formed a subsequent marriage or civil partnership;
  • a child of the deceased;
  • any person (not being a child of the deceased) who was treated by the deceased as a child of the family (see below Estate of Neil Douglas Archibald (deceased) and another v Stewart and others [2023] EWHC 2515 (Ch).
  • any person who immediately before the death of the deceased was being maintained, either wholly or partly, by the deceased;
  • any person living with the deceased for at least two years immediately before the date of death as if they were a married couple or civil partners.

Furthermore, if you were separated from the deceased, or going through divorce proceedings at their date of death. If a financial settlement has yet to be made, and a decree absolute was issued in the 12 months before the deceased’s death, the court may effectively disregard the fact that your relationship had broken down. Otherwise, you may only be able to claim what is reasonable for your maintenance.

In the recent case of the Estate of Neil Douglas Archibald (deceased) and another v Stewart and others [2023] EWHC 2515 (Ch) a daughter in law of a deceased person attempted to argue that she was eligible to present a claim on the basis that she was treated as a child by the deceased. The court indicated that they require strong evidence of the fact that any daughter in law or son in law was treated as a child in their own right, instead of solely being recognised as the spouse of the deceased’s child.

Separately, in the widely publicised case of Ilott v Mitson [2011] EWCA Civ 346 an estranged adult daughter successfully recovered a portion of the estate of her late mother, which had otherwise been fully left to various charities.

An application under the Act must be made within six months from the date on which the Grant of Probate is sealed. Claims can be made, and are encouraged to be made, before a Grant of Probate is sealed.

In the event of a successful claim, the court holds power to order that periodical payments, lump sums and even specific properties be awarded to a claimant.

Challenges to the Validity of a Will

There are several grounds that can be challenged in cases where one holds concerns as to the validity of any Will:

  • Concerns of the capacity of the deceased at the time the Will was created;
  • undue Influence or coercion placed on the Deceased when making a Will;
  • unsuitable witnesses of the Will;
  • forgery of the Will;
  • when a deceased was unaware that they were creating a Will, or solely unaware of its contents.

Any individual is permitted to a challenge the validity of a Will. However, as may be expected, an individual seeking to contest the validity of a Will shall generally hold an interest in it. This can include, spouses, children, relatives, in addition to any beneficiaries (or substitutes) of the most recent Will, or any previous versions.

There is no time limit for claims to challenge the validity of a Will, however, it is encouraged to advance a claim at the earliest possible opportunity to minimise the risk that the estate has already been distributed which can lead to added costs in rectifying the position and a likelihood that funds have already been paid to beneficiaries.

In the event of a successful challenge to the validity of a Will, the court will determine whether any previous Wills are valid. If there are no valid previous Wills, the estate shall be distributed via the intestacy rules.

M&P Commentary

William Cook, Solicitor in the Dispute Resolution Department at M&P, said:

“ The rules, particularly in respect of claims for reasonable financial provision under the Act, continue to face regular examination of their application, as evidenced by recent case law. Our contested probate team can advise you as to whether you may fall within the scope of the Act to present a claim and can thereafter guide you through the process of pleading of your claim from the outset to the point of resolution. Many contested probate matters do not proceed to court and can be amicably settled at mediation or via negotiation.”


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