Post-pandemic contentious probate claims on the rise
With the worldwide pandemic and ensuing lockdowns, we have seen a marked increase in the number of claims being brought against estates and in particular, claims under the Inheritance (Provision for Families and Dependants) Act 1975.
These claims involve eligible applicants who argue; they have not received reasonable financial provision from an estate or intestacy, and they need an amount for their maintenance. One type of ‘eligible applicant’ is an adult child but following the case of Ilott v Blue Cross  it was for a time looking as though these types of applicants might be on the decrease. However, with the impact of the pandemic, it certainly appears these types of adult cases might be on the rise again.
When considering claims under the Inheritance Act, the court considers; whether reasonable financial provision has been made for the applicant and, if not, then whether the applicant has a need for maintenance. This usually involves more detailed analysis of the relevant sections of the act in conjunction with the specific facts of the claim. The difficulty in advising applicants in Inheritance Act claims is that the court has a wide discretion on whether to make an award and cases are usually fact specific. Generally speaking, the court considers; the section three factors of the act, such as the applicant’s needs and resources, other parties/applicants’ competing needs, any obligation owed by the deceased, medical needs and behaviour.
The applicant’s financial needs and resources are usually subject to scrutiny to determine whether there is a shortfall in income, a housing need or significant debts all of which can be considered to constitute a need for provision. The relevant date for consideration of the applicant’s needs is at the date of trial not the date of the making of will or even the date of the family member’s death. Therefore, where an applicant has been left out of a will deliberately because at the time their family member considered they were ‘well off’ or could take care of themselves, their financial circumstances could have changed considerably post pandemic.
Add to this the increase in death rate coupled with a more valuable estate asset in the form of property, it is unsurprising that adult children who might not have brought a claim prior to 2020, now find themselves struggling financially and bringing a claim against a relative’s (usually parent’s) estate. A financial need which might not have existed prior to the pandemic might now have increased as a result of a job loss, reduction in income for the self-employed, housing need and increase in debts. The psychological impact of being omitted from a loved one’s will should not be under estimated either and an adult child with more time on their hands to ponder and ruminate over past relationships might use these feelings to drive the litigation.
A warning to litigators that the adult child applicants appear once again to be emerging from the shadows of the post-Ilott lull.
Written by Tara McInnes, contentious probate solicitor, previously worked at Shoosmiths but joins The Burnside Partnership on 22nd February.