I have been unfairly left out of a Will – what can I do?

What is a probate dispute?

Probate disputes can arise in various different guises but are often centred around the validity of a deceased’s Will, the provisions or legacies left within it, or the management of the administration of the estate by an executor. 

One type of claim that is often made is one brought by disappointed parties who are seeking either provisions, or enhanced provisions from an estate pursuant to The Inheritance (Provision for Family and Dependants) Act 1975 (“the 1975 Act”).

The 1975 Act gives the court, the power to alter the distribution of a deceased's estate, in circumstances where it determines that the Will has failed to make reasonable financial provision for a dependant and/or eligible claimant. 

What the court would deem as reasonable or unreasonable will depend on a variety of factors such as the claimant’s relationship to the deceased and all the circumstances of the case.   In other words, each case will be subjective to its own facts.  

When assessing and placing emphasis on the circumstances of the case, the court will consider various factors, such as the claimant's financial resources and needs as well as the needs of any competing beneficiary under the estate, any obligations or responsibilities the deceased had towards the claimant, and any disabilities affecting the claimant or other beneficiaries.  

Who can bring a claim under the 1975 Act?

There are a limited number of people who can bring a claim under the 1975 Act, and typically claims are brought by either a spouse, a child of the deceased or someone who the deceased was maintaining financially. 

Following the highly popularised case of Ilott v Mitson concluding at the Supreme Court in 2017, we have seen the rise of claims by adult children, with varying degrees of success.    Whilst claims are now more frequent, the likelihood of claims succeeding still remain limited to certain factual elements being established. This is in contrast to that of minor children who will have clear ability to show need and dependency given their young age as opposed to adult children with earning capacity themselves. 

In earlier cases involving claims by adult children, it was often stated that aside from a claimant showing that they were in financial need, they would need to establish a moral claim for the claimant to be maintained at the expense of the estate.

There has been much debate about what was meant by a moral claim, however, this was narrowed down and clarified by Lord Hughes in Ilott, where he stated “There is no requirement for a moral claim as a sine qua non for all applications under the 1975 Act, and Oliver J did not impose one. He meant no more, but no less, than that, in the case of a claimant adult son well capable of living independently, something more than the qualifying relationship is needed to found a claim, and that in the case before him the additional something could only be a moral claim. That will be true of a number of cases.”

What does ‘Something More’ mean in the context of a 1975 Act claim?

We are now in a position whereby a claimant needs to meet this threshold of ‘something more’ than that of being eligible and in financial need. The starting point is that a claimant must make out a substantive case that the wishes of the deceased should be amended. The fact that no provision for a claimant has been made, can be held to be reasonable provision in the circumstances of the case and in most cases, it will be, unless this ‘something more’ can be established. 

Case studies

It is common that the something more elements will usually involve a claimant claiming some level of physical or mental impairment, and the key point will be as to whether this renders the claimant incapable of working and/or unable to work to their full earning capacity. However, there have been more recent decisions in which the something more element was established due to actions of the deceased and/or the claimant. In Isaacs v Green, the claimant had been left out of his deceased mother’s Will, but on evidence it was found that the reasoning for the deceased changing her Will was due to concerns about the financial impact of the claimant’s divorce and not due to a poor or estranged relationship. This was enough for the judge in this instance to find the ‘something more’ element as required. 

The court has also handed down a recent judgment in the case of McDaniel v Talbot, in which the claimant sought provision from the estate of her late father from whom she had been estranged from for most of her life and in particular at the time upon which he drafted his Will. Towards the end of the deceased’s life, they had reconciled and become close, but the deceased hadn’t altered his testamentary intention which meant the claimant stood to inherit nothing.

Following a hearing before the court in late 2025, it found that the claimant was both a qualifying person and had necessitous financial circumstances but again emphasised the need to show something extra to show that the Will failed to make reasonable provisions for her.

In this instance, on evidence before the court, the judge found that the caring nature of the claimant and her conduct, generosity and compassion shown towards the deceased and other family members gave rise to the special circumstances needed to tip the balance in the claimant’s favour.

The judge highlighted the type of care and love the claimant had shown towards the deceased following the reconciliation, such as caring for him whilst he was unwell and taking a heightened interest in his medical care and comfort as evidence to support her finding.  To emphasis this point the Judge stated that she had…” taken some time to highlight the basis for what [she found] was the special circumstance, since the factual basis of that finding [was] a rare one in this context.”

The judge went onto to say that “[she does] not go so far as to suggest that [the claimant’s] generosity and care towards [the deceased]created a moral obligation as such”, but there was an acknowledgement of the mutual love and respect between the claimant and the deceased and how this elevated matters to find the something more.

It will be interesting to see if the finding here does develop into further cases being cited whereby the adult claimant can seek to claim it unreasonable for them to not be included as a beneficiary of an estate, in circumstances where they have provided care and assistance to the deceased in their elder years. Given this is an increasingly common position for parties to find themselves in, it may well be enough to tip the balance, even where the claimant does have sufficient earning capacity. 

How we can help

If you are concerned about a Will or believe you have been unfairly excluded we can provide tailored legal advice to help you find a resolution. Contact Lee Quickenden in our Contentious Probate team for a consultation on 01732 496490, or by email on lee.quickenden@thackraywilliams.com.