Where There’s a Will Challenge, Who Gets Their Way?

A Will is crucial to making your intentions known after your death. We have written hundreds of Wills for clients and much of our time is spent getting to know people’s wishes so that we can advise how best to put them into effect.

However, the truth is that no Will is immune from being altered or challenged after you are gone. This doesn’t mean you shouldn’t make one – far from it! We explore the reasons why later in this article, but it is important to be aware that Will challenges are a possibility in some situations.

There are various ways in which a Will can be challenged, although they are all relatively rare. Arguments can be made against the validity of your Will, perhaps on technical grounds or on the basis that you did not understand what you were putting in place. Another way is to argue that your Will cannot accurately reflect your intentions, that you were pressured into its terms by someone else, for example, or you were influenced by a fraudulent calumny.

However, in this article we will look at possibly the most well-known method of challenging a Will: making a claim under the Inheritance (Provision for Family and Dependants) Act 1975 (IPFDA). This allows certain categories of people (see below) to claim for ‘reasonable financial provision’ from your estate. In effect, they’re claiming that they have not been provided with anything, or enough, from your estate.

To illustrate how courts go about deciding these cases, we will use a recent case: Nahajec v Fowle [2017] EW Misc 11 CC. This case was one of the first to follow the landmark ruling of Ilott v Mitson, which was decided by the Supreme Court.

Basic requirements of an IPFDA claim

Someone making an IPFDA claim must fall into one of the following categories of people who are eligible:

• Children of the deceased
• Spouses or civil partners of the deceased
• Cohabitees of the deceased – although certain restrictions apply (have a look at our blog post on this topic for more information).
• Former spouses or former civil partners of the deceased – provided they have not formed a later marriage or civil partnership.
• Anyone treated by the deceased as their child
• Anyone being maintained by the deceased (either wholly or partly).

All the categories, except for spouses and civil partners, must demonstrate that the reasonable financial provision for which they are claiming is needed for their maintenance. Spouses and civil partners do not have this requirement. They only have to show that the financial provision is reasonable in all the circumstances of the case.

Nahajec v Fowle

This case concerned a daughter’s IPFDA claim against her estranged father’s estate.

Stanley Nahajec’s Will left the whole of his estate (valued at £265,710) to his friend, Stephen Fowle. In doing so, Stanley disinherited his three adult children. They were Mark and Scott (from his first marriage) and Elena (from his second marriage). It was Elena’s claim at issue in the case.

Stanley had essentially no relationship with Elena or his sons for many years before his death. When Stanley and Elena’s mother had separated, around 1996, he cut himself off from the family. Elena was 11 at the time. Her many attempts to contact Stanley were rejected. However, Elena managed to briefly rekindle a relationship with her father between 2007 and 2009. Stanley then cut himself off again, allegedly because he did not approve of Elena’s then boyfriend. There was no further contact or relationship after that time up to Stanley’s death.

In a note accompanying his Will, Stanley acknowledged he left nothing for his children. He wrote: ‘I have not seen or heard from any of my children in the last 18 years and I do not believe they have any interest in me or my welfare ‘. He also stated that his children required no provision as he believed they were all of independent means. It was his wish that they should receive nothing.

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How does a court decide an IPFDA claim?

As the Nahajec case shows, there are often some very difficult issues to resolve in IPFDA claims. It is fair to say that doing so involves some mental gymnastics on the part of the court.

The fundamental question to address is not whether the person making the Will acted unreasonably in cutting the person out, but whether the result of the Will is unreasonable, in that it does not provide any, or enough, provision for the person.

Stanley might be said to have acted unreasonably in cutting his children out of his Will, but it is only ‘one piece of the puzzle’. Courts instead have to look at the case as a whole – Stanley’s conduct may be one factor, just as his wishes, Elena’s circumstances, Mr Fowle’s financial situation, and numerous other details are as well.  With all these things taken into account the question is: did the Will make a reasonable financial provision for Elena, and, if not, what would be reasonable?

This issue is always looked at ‘objectively’. In other words: from the point of view of a completely impartial and reasonable person, rather than from the imagined perspective of, say, Stanley or Elena. It involves weighing up many different factors and circumstances.

So what are the factors which help to assess what is reasonable? The factors a court should consider in these claims are contained in the IPFDA – i.e. the Act itself. They are listed here, with details from Nahajec to illustrate how they were applied in the case. The court will consider:

• The financial resources and needs of certain people (including any resources and needs they are likely to have in the foreseeable future).

These people are:

The claimant – Elena’s financial difficulties were examined. She worked two part-time jobs but was struggling financially because she had incurred considerable debts. The judge noted that she was only just making ends meet. She wanted to become a vet and had been undertaking unpaid part-time work in a veterinary practice but needed money for tuition fees if she was to follow this career path.

Any other claimants – Elena’s half-brother, Mark, had already made a claim and settled it for £22,000. However, if he had been claiming at the same time as Elena, his needs and resources would also have to be considered.

Any beneficiary of the estate – Only Stephen Fowle benefitted from Stanley’s estate. The court heard evidence that he too was in some financial difficulties. His business had suffered when he had taken time to look after Stanley during his illness. However, the court noted he had made several extravagant purchases, including two Rolex watches for £18,000, even after he had been aware of Elena’s claim.

• Any obligations and responsibilities which the deceased had towards any claimant or towards any beneficiary of the estate. It was stated that just because a claimant is a blood relation does not automatically mean the deceased had any obligations towards them. There has to be something more than just blood ties, such as an element of morality, to support a claim. With Elena’s claim, she had tried to have a relationship with Stanley several times in the past. Stephen Fowle did not assert that Stanley owed him any obligation.
• The size and nature of the net estate of the deceased. Any financial provision awarded has to be considered in proportion with the value of the estate. 
• Any physical or mental disability of any claimant or any beneficiary of the estate of the deceased. This factor was not relevant in the Nahajec Although Elena had experienced a cancer scare, there was no assertion she was unable to work. Mr Fowle stated that his work was affected by his sciatica. However, the court noted it did not have any evidence in relation to this and so it was not considered. 
• Any other matter, including the conduct of the claimant or any other person, which in the circumstances of the case the court may consider relevant. This is a wide ‘catch-all’ factor. In Nahajec, the judge noted Stanley’s conduct in avoiding contact with his children. Scott, who had no interest in Elena’s claim either way, supported her evidence that Stanley’s character had been stubborn and intransigent. Regarding Stanley’s note accompanying the Will, the judge highlighted Stanley’s mistaken belief that all of his children had independent and sufficient means. It was held not to be the case with Elena. By contrast, the judge was impressed with Elena’s conduct, both in trying to re-establish contact with her father (which was accepted as genuine), and the way in which she gave her evidence. Her intention to improve her situation by becoming a vet was also noted in her favour.

Weighing up all of these factors, the court decided that, upon an overall objective assessment, the effects of Stanley’s Will did not make reasonable provision for Elena’s maintenance. She was awarded £30,000 from the estate. This was equivalent to about 11% of the estate. A similar proportion was awarded in the Ilott v Mitson case, which had similar circumstances.

Does this mean there’s no point making a Will?

Stanley’s wishes were changed from those contained in his Will. Instead of Stephen Fowle receiving all of his estate, he received the majority of the estate, with Mark and Elena receiving £22,000 and £30,000 respectively. With hindsight you might ask: what was the point of Stanley making a Will at all?

There is definitely a point to making a Will!

There are several good reasons for this:

1. Without a Will, the intestacy rules will operate – you have no control over who will inherit your property if this happens. If you are worried about a loss of control as a result of having your Will challenged, then this is nothing to the complete loss of control that the intestacy rules represent.
2. The Intestacy rules can be altered by an IPFDA claim too – there does not have to be a Will for an IPFDA claim to be made. If someone whom you do not wish to inherit anything from you is eligible to make an IPFDA claim, then they can make it whether you have a Will or not.

3. IPFDA claims, rarely, if ever, completely overturn a Will – as shown in Najahec above and in Ilott v Mitson, the IPFDA claimants are more likely to receive a percentage of your estate (if anything) rather than the whole of it.
4. Just because a Will may be challenged legally, does not mean it will be – avoiding making a Will just because it might be challenged is a bit like ‘cutting off your nose to spite your face’ in this respect!
5. Tax-saving – making a Will is not just about controlling where your property goes after you are gone. A Will allows you to arrange your affairs to save tax or plan for later life care, meaning that your beneficiaries receive as much of your property as possible. Take a look at our inheritance tax calculator to get an idea of how much of a difference this could make.

On a final note, if Stanley had not made a Will, the intestacy rules would have operated to share his estate equally between his children, on the assumption he had not remarried after the death of his second wife. His friend Stephen Fowle would have been certain to receive nothing.

At Roche Legal, we are reassuring experts who specialise in Wills, estate planning, and resolving Will disputes.