Inheritance Provision and Contested Probate developments
  • 9th Aug 2017

Inheritance Provision

The County Court at Leeds handed down judgment regarding the estate of Stanley Nahajec in the first case of its type since the ground breaking Supreme Court decision in Ilott and The Blue Cross –v- Ors.

Elena Nahajec was awarded £30,000 from her father’s estate despite having almost no contact with her father for several years and her father’s explicit disinheriting of all 3 children.

Cases of this nature centre on the concept of reasonable financial provision, and in particular the definition of maintenance. This judgment strikes through the tabloid headlines regarding testamentary freedom and clearly identifies the extent of the Inheritance (Provision for Family and Dependants) Act 1975 post Ilott.

Law reform

Contested Probate claims are notoriously complex and difficult and require specialist advice. The Law Commission has opened a public consultation to identify areas in Private Client law which require modernisation. It is argued that this is necessary due to:

  • an aging population with a greater instance of dementia;
  • the evolving medical understanding of psychological and psychiatric disorders;
  • the changing pattern of family life; and
  • greater property ownership in the general population.

The law commission is consulting on proposals to dispense with the formalities for a Will (s. 9 Wills Act 1837), to change the test for testamentary capacity (Banks –v- Goodfellow 1870), to provide statutory guidance for doctors and other professionals to assist in the assessment of mental capacity, and to lower the age that a Will can be made by 18 to 16.

This may be a positive step should it reflect the changing circumstances of the modern world. The proposals have a potential to make this already complicated and contested area of law even more so.

For legal advice regarding the Inheritance (Provision for Family and Dependants) Act 1975, contested probate claims, and the law commissions proposals and how it may affect you and your family please contact Whitehead Monckton on 01622 698000 or enquire online.