Navigating Probate Disputes: Key Considerations When Challenging A Will (1 March 2024)

Duncan Lewis & Co Solicitors


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A poll conducted by Will Aid identified that that only 73% of parents would share their inheritance equally between their children.
UK Family and Matrimonial
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In England, individuals enjoy 'testamentary freedom,' allowing them the liberty to designate beneficiaries of their estate without any legal obligation to provide for children, spouses, or other family members. Despite this freedom, practical scenarios often lead to disputes and claims among siblings or family members who perceive that they were unjustly deprived of a particular inheritance outlined in the testator's Will.

A poll conducted by Will Aid identified that that only 73% of parents would share their inheritance equally between their children. Meanwhile, 1 in 10 would give each of their children a different amount, 1 in 20 would leave their children with nothing and 12% were undecided. Several factors contribute to disputes over inheritance, including increased life expectancy and the expectation that parents will use their own funds during retirement, leaving little or nothing for their children. Additional reasons for such disputes may stem from concerns about a child's financial irresponsibility, debt, or bankruptcy, prompting parents to be cautious about passing on their hard-earned assets.

The above sentiment is even felt by famous celebrities such as Ashton Kutcher and Mila Kunis who have stated they would leave nothing to their children. Likewise, Facebook founder Mark Zuckerberg and his wife, Priscilla Chan have said they will leave 99% of their Facebook shares to "advancing human potential and promoting equality for all children in the next generation."

The split is further divided amongst blended families where the poll revealed that 48% of parents with step-children would split their assets equally between their step and biological children; 23% would leave more to their biological children, with just under 1 in 5 saying they would leave their assets to their biological children only.

This issue has given rise to many beneficiaries to challenge a Will and make a claim under the Inheritance (Provision for Family and Dependants) Act 1975 ("the 1975 Act"). A claimant other than the spouse who wishes to bring a claim under the 1975 Act, must show that the Will does not make 'reasonable financial provision' for their maintenance. Only certain categories of individuals can bring a claim under the 1975 Act, and one of these categories is the children of the testator. Minor children have a higher rate of successfully making a claim and establishing that their parent, the testator, had an obligation to maintain them and provide for them financially at the time of their death.

Alternatively adult children can also bring a claim under the 1975 Act, however they would need to prove that the deceased testator had a responsibility to maintain and provide for them which could be more challenging. A successful claim under the 1975 Act would require certain factors to be considered, such as the financial needs and resources of the claimant and other beneficiaries, the nature and size of the deceased's estate, if the claimant or any other beneficiaries suffer from any mental or physical condition or any other matter which is relevant to the claim.

Contesting a will be a highly emotional experience – If mediation fails and you wish to contest a will before the court Duncan Lewis Probate solicitors offer clear and focused advice to clients at what is often a difficult time, when financial matters may be the last thing on a client's mind.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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