Client stories

We have set out below typical hypothetical scenarios which bear common features to usual circumstances whereby:

• a person who is a dependent or family member of a deceased person would seek to bring a challenge under Inheritance (Provision for Family and Dependants) Act 1975 (“the 1975 Act”);
• a Will is likely to be challenged on its validity;

• a person is seeking to claim an interest in a property registered in the name of another person, or persons.

The characters and scenarios are entirely fictitious but have the hallmarks of what each challenge would look like.

What can a person do if they have been excluded from a Will?

Mark has two adult children from his first marriage to Samantha, named Harry and Hayley. They are now in their late 20’s and live on their own away from Mark.

Mark has since met Rebecca, and they got married 7 years ago, and have a son together, named Matthew who is 5 years old.

Mark was the main breadwinner in the family and owned the home that he lived in with Rebecca and Matthew. Rebecca worked part-time but was mainly at home to provide childcare for Matthew.

Although they are both adults, both Harry and Hayley didn’t own their own homes and were not in significantly well-paid jobs. Hayley had amassed a lot of debt on credit cards and consumer loans. Harry didn’t have any real debt but was in low-income part-time employment and suffered from issues surrounding his own health which prevented him working full time. 

Mark sadly became unwell and passed away in 2025. At the time of his death, Mark had sufficient assets such as property and cash in the bank as well as stocks and shares investments.

Shortly before he passed away, Mark wrote a Will in which he decided to leave the bulk of his estate to a charity which had assisted him during his illness and only left small legacy payments to Rebecca, Harry, Hayley and he placed a small amount in trust for Matthew.

Rebecca, Harry and Hayley are all disappointed with the provisions left in the Will for them. In turn, Rebecca is also upset that Mark failed to make sufficient provisions for Matthew and his future. 

What sort of challenges can be made to alter the provisions set out in the Will?

We will now look at what, if any, claims can be brought by each party pursuant to the 1975 Act.

In short summary, the 1975 Act allows certain family members and dependants to apply to the court for reasonable financial provision from a deceased person’s estate if the Will failed to provide adequately for them.

In this scenario, Rebecca, Harry, Hayley and Matthew would all be eligible claimants being either the spouse of Mark in the case of Rebecca, and being his children in the case of Harry, Hayley and Matthew. Even though they are adults, both Harry and Hayley would still be able to bring a claim.

Due to his age, Matthew would still be eligible to ring a claim but would need a 3rd party to act as a litigation friend on his behalf and advance a claim for him.

Each claiming parties’ claim would be subject to its own subjective facts and criteria, but Rebecca and the children would have differing standards of provisions to which they claim.    In the case of Rebecca as the spouse, she would be able to claim reasonable financial provision which means in practice ‘such financial provision as it would be reasonable in all the circumstances of the case for a husband or wife to receive, whether or not that provision is required for his or her maintenance’.

For any other category of applicant, and in this case, the children (both minor and adult), the applicable standard is confined to “such financial provision as it would be reasonable in all the circumstances of the case for the applicant to receive for their maintenance’.

What factors does a court take into account when assessing claims under the 1975 Act?

When assessing the claims by all parties, the court would take into consideration the following factors when determining whether to alter Mark’s testamentary wishes and make provision for any of the parties:

When considering whether Bill would receive reasonable financial provision from the estate, the court would consider Bill and Ben’s (as beneficiary):

• financial needs and resources now and in the future
• obligations and responsibilities that Mark has to all claimants
• size and nature of the estate
• physical or mental disabilities of any of the claimants
• other relevant factors such as conduct

Although they would all be able to bring a claim under the 1975 Act, the material factors are subjective to each person, and all claims will have varying degrees of merit and success.  

What is a common dispute as to the validity of a Will?

George was married to Sarah, they had two children, Tom and Amy. They made Mirror Wills in 1995 leaving everything to each other, with the whole estate passing from the last survivor to the children in equal shares. Sadly, Sarah passed away in 2015, and her estate passed to George as per the terms of the Mirror Will.   

Since the death of Sarah, George became friendly with his neighbour, Josie. His relationship with both Tom and Amy became distant as they grew older and moved to other parts of the country and had families of their own, although they did remain in regular contact. George was then diagnosed with dementia. As George’s own health deteriorated, he became more and more reliant on Josie for day-to-day care, and assistance with everyday living. 

Sadly, George himself passed away in 2025. Shortly before he passed away, George made a fresh will leaving the whole of his estate to Josie and excluding Tom and Amy. 

Tom and Amy are now concerned with the validity of the will that George made. They are now seeking to challenge the will and the legacy given to Josie. They have scant details around the circumstances of how the new will was made but they are concerned that George was not of sound mind, and that he was pressured into making the will by Josie. They are also concerned that the will contains a signature which may not have been that of George, although it does have the signatures of two friends of Josie who are listed as witnesses. 

What sort of challenges can be made to contest the validity of a Will?

We will now look at various types of challenges that may be brought and/or investigated by Tom and Amy when looking at the above scenario. This list is not exhaustive, and each case will have its own factual elements which make it worth pursuing but the below listed challenges are ones we would commonly see from the above facts. 

1. Did George have the required testamentary capacity?

    

   If contesting the validity of the Will, Tom and Amy would need to raise a real suspicion that the George lacked capacity. If they can do so, the burden of proving capacity would rest with the person seeking to rely on the will, in this case, this would likely be Josie.

    

   The test which is applied for testamentary capacity is set out in well-known case of Banks v Goodfellow [1870] LR 5 QB 549, which states that the testator must:

   1. understand the nature of making a will and its effect
   2. understand the extent of his/her property
   3. be able to comprehend and appreciate the claims to which he/she ought to give effect
   4. have no disorder of the mind which ‘shall poison his affections, pervert his sense of right, or his will in disposing of his property'

    

   In a claim of this nature, it would be usual to review the medical records of George and any capacity reports, as well as the files notes of any meetings with professional will writers, if any, to understand the circumstances surrounding the will being drawn up and signed and to assess the likely capacity George had at the time. 

2. Did George properly understand and approve the content of the Will?

    

   For a Will to be valid, the deceased must have had knowledge of the contents therein and understand and approve them. 

    

   It would be usual to obtain the details of the circumstances in which the Will was entered into and executed by George, this could be in the form of solicitor’s notes, or statements from the attesting witnesses. If the Will was drawn up by a professional Tom and Amy should make enquires of them and seek copies of meeting notes and other contemporaneous documents. 

    

   If Tom/Amy can highlight suspicious circumstances surrounding the signing of the Will, it is for Josie seeking to prove the validity of the Will to prove that George did fully understand the Will and that he did give approval to the contents. 

    

   Usually these types of claim would arise in circumstances where a person, not being the deceased has given all the instructions (or the bulk of the instructions) to the Will drafter and/or the will drafter has never met the deceased in person and as such would call into question the deceased’s understanding of the Will and it’s content.  

3. Was George subject to any Undue influence?

    

   Claims of undue influence are very difficult to prove, and they are very subjective to the facts of each case. In this scenario, Tom and Amy would need strong evidence that George acted against his own free will and was coerced by Josie into making the Will.  

    

   There is no automatic presumption of undue influence. For a claim of this type to succeed, the person claiming (i.e. Tom/Amy) must establish that actual undue influence occurred, and the burden of proving this is high. It is common that the evidence to prove this is not readily available given the context in which undue influence would normally occur. 

    

   However, as said, each matter is subjective to its own facts and evidence which is available to the claiming party and undue influence remains a ground upon which a Will can be revoked for invalidity.

4. Was the will properly executed by George?

    

   Tom and Amy are concerned that George may not have actually signed the Will. However, given that it was witnessed by two purportedly independent third parties would give rise to a presumption that the Will is one that is valid. It would be for Tom and Amy to prove otherwise.

    

   Pursuant to section 9 of the Wills Act 1837, for a will to be valid, it must be:

   1. in writing
   2. signed by the testator (or in limited circumstances in the testator’s presence and at his direction)
   3. the testator must intend when signing the Will for it to be valid
   4. the testator’s signature must be acknowledged in the presence of at least two witnesses.

    

   As stated, it would be for Tom/Amy to rebut the presumption of validity by adducing evidence that the Will was not properly executed. The evidence in this regard is likely to be that of the attesting witnesses, and the first action should be for Tom/Amy to make contact with them and seek to establish the facts surrounding the Will signing and ask them to produce witness evidence of due execution.

How can I claim an interest in property held in the name of somebody else?

When it comes to claiming a beneficial interest in a property, the starting point and easiest way of establishing this is looking at the title documentation, which should clearly state who the registered legal owner is. However, what happens when you are seeking to claim an interest in a property which is held in the name of another?  

This can come in various guises, such as co-habiting couples, family and informal arrangements and other common scenarios whereby the registered owner may not be the true full beneficial owner due to contributions made and/or other agreements. 

Mr Smith owned a property in London. In 2002, he allowed his son, James to move into the property together with his wife, Susan and their 3 children.

Over the years, James carried out various renovations and improvements to the property, which enhanced its value. In 2020, following a dispute, Mr Smith changed his will and left the property in his will to his daughter, Carol. 

Upon the death of Mr Smith the following year, Carol obtained a Grant of Probate and sought to take steps to terminate James’s occupation of the property. 

James is now seeking to assert that he has a beneficial interest in the property and he is claiming that he only moved into the property on the basis that it was intended that he was to ultimately become the beneficial owner of the Property once Mr Smith passed away, and that Mr Smith had stated this on several occasions. He is now claiming that based on such promises, he suffered financially by the money and time spent on the home improvements. 

What claims could be made for a beneficial interest in the property?

Looking at the factual matrix of the position above, it is likely that James may be able to assert a case based on either a common intention constructive trust being established in his favour, and/or a proprietary estoppel claim.  Whilst each claim has its own grounds that need to be established, there is often a lot of cross over.

1. Common Interest Consecutive Trust

   For James to establish an interest based on a comment intention constructive trust, he would need to show that:

   1. There was a common intention with his father, that he would have a beneficial interest in the property, and this established by express evidence of such agreement, or inferred by conduct; and
   2. That James had acted to his detriment based on such common intention to the degree that it would be inequitable, or unfair for his father (or the estate in this case) to deny such interest.
2. Proprietary estoppel 
   Whilst there is a degree of similarity in a claim of common intention constructive trust and an estoppel-based claim, if James were to seek to claim an interest based on proprietary estoppel, he would need to show that:
   1. A clear and sufficient representation or assurance was made.
   2. James reasonably relied on such representation or assurance; and
   3. James suffered detriment to the claimant in consequence of such reasonable reliance.

The onus would be on James to try and prove the common intention and/or that a promise was made by his father.  He would also need to show that he had suffered sufficient detriment in reliance on the intention or promises. Detriment is not limited to just finances but it is quite often the common detriment that a claiming party seeks to evidence.