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Contentious Probate: making a successful ‘1975 Act claim’. Are your dispositions reasonable?

By Fraser Barnstaple, Underwriter

(Estimated reading time: 5 minutes 9 seconds)

A look at the Inheritance (Provision for Family and Dependants) Act 1975 and dispositions being subject to a test of reasonableness in the light of their increasing usage in contentious probate disputes. There’s also a crucial question the court may ask itself, plus a look at ‘What can ATE insurance do for your clients in 1975 Act claims?’

What are 1975 Act claims and why do they matter?

The Inheritance (Provision for Family and Dependants) Act 1975 (the 1975 Act) was enacted to codify existing legal principles on making provisions for one’s family members in a will. In essence, the 1975 Act cemented the discretionary power given to the courts by previous legislation and existing case law to rule that reasonable provision should have been made for members of the deceased’s ‘family circle’ in a will, or where the deceased has died intestate.

The 1975 Act allows for persons linked to the deceased by marriage/civil partnership, cohabitation, blood, or dependence to apply for an order that the deceased’s estate should make reasonable provisions for them based on that bond. In one way, the 1975 Act underlines a deceased person’s moral obligation to provide for their dependants, maintaining their testamentary rights by subjecting any dispositions to a test of reasonableness in all the circumstances.

This article is a whistle-stop tour of those provisions in the light of their increasing usage in contentious probate disputes. It also touches on why ATE insurance is so important in these kinds of cases, and what Temple Legal Protection can do for your clients whether they are Claimants or Defendants to these sorts of actions.

What does a successful 1975 Act claim look like?

A claimant must persuade the court that the disposition of the deceased’s estate does not make reasonable provision for the applicant when taking into account the important factors in 1975 Act, s3. These factors are often where the claim will be successfully won or defended.

However, first it is important to establish the position of the applicant. If the applicant was the spouse or civil partner of the deceased, it is less important whether the financial provision of the estate is required for their maintenance (1975 Act s2(a)). Instead, equitable factors play a greater role – such as the contribution, financial or otherwise, the applicant made to the deceased. For example, raising children and continuing to do so after the death of the deceased. Where the applicant was not the spouse or civil partner of the deceased, their own financial position is likely the primary concern of the court.

The 1975 Act s3 lists specific matters which the court must consider when assessing a claim. However, there are some factors which we (as ATE insurers) pay closer attention to and believe play a more decisive role in the outcome of the claim. For example, a disability an applicant has is an important factor as well as the size of the estate. This links to another, and perhaps the most crucial factor: the current and expected future financial positions of the applicant and of the defendant. ‘Who needs the estate more?’ may be a question that the court asks themselves.

On the flip side, some factors, as we at Temple have seen in dealing with such cases, can take a back seat. The wishes of the testator for the applicant to receive no award, even when stated clearly on the will, may be disregarded if the court sees fit. Additionally, the state of the relationship between the applicant and the deceased, although it will be taken into account, is not particularly important.

What do we need to see?

At Temple Legal Protection our underwriters are looking to assess whether your client’s case has a 60% prospect of success (or better) before offering terms of insurance. All of our underwriters are legally qualified with access to practitioner texts and databases, so you can be sure that your case is handled with the appropriate care and understanding every time.

Temple can offer adverse costs and own disbursements cover of up to £2,000,000, as well as offering a fully deferred and contingent insurance premium structure as standard (the premium is only payable if there is a successful outcome for your client and it is not payable upfront. In addition there is the ability to access disbursement funding via our sister company, Temple Funding.

What we need to see in order to make our assessment in 1975 Act claims is generally a mix of the following documents if they are available:

  • The provisions of the will itself.
  • A summary of any advice given to the client.
  • Counsel’s advice if already sought (though not essential by any means!).
  • Witness statements if taken.
  • The pleadings if drafted.
  • Inter-partes correspondence / pre-action correspondence.
  • Any other documents considered relevant or relied upon by the client’s legal representatives.

Temple’s underwriters then assess the merits of the case taking that information into account, alongside their own legal research and any further questions they may ask regarding the case. The underwriter will then determine whether terms should be offered.

In the event that our underwriters do not offer terms, you will receive an email outlining the reasons why this is the case and how we arrived at that decision.

What can ATE do for your clients in 1975 Act claims?

ATE insurance in these cases greatly benefits clients. They receive certainty over how much they will pay out in the event of a loss. They will also avoid adverse costs, which usually far exceed the cost of the premium. At Temple, we have considerable experience insuring contentious probate cases and claims under the 1975 Act. All of our commercial underwriters have legal qualifications which allows us to provide fast, sensible and informed decisions.

Additionally, our existing legal knowledge base means we guarantee a maximum 5-10 working day turnaround for processing referrals. We also offer contingent and deferred insurance premiums.  Temple also offers structured premiums which very accurately reflect the stage that the case is at, and gives the insured comfort in knowing that if the case settles at an early stage, less insurance premium will be payable.

If you would like more information on our ATE insurance and disbursement funding products for wills and probate litigation, or you have any other legal expenses insurance query, please email or call me on 01483 514428.

Fraser Barnstaple

Senior Underwriter
Read articles by Fraser Barnstaple

Fraser Barnstaple

Fraser is a Senior Underwriter within the Personal Injury, Clinical Negligence and Commercial teams.

Fraser joined Temple in May 2022 following the completion of his LLM Laws degree at University College London. Before that, he graduated in 2021 with a First-Class LLB Law (Hons) degree from the University of Leicester. Alongside his role at Temple, he currently studies part-time at City, University of London on the Bar Vocational Studies course with the assistance of various scholarships.

Fraser’s academic background has given him a vast knowledge base in numerous areas of law, which allows him to be versatile in dealing with whatever legal issues may arise. He strives to provide support throughout the legal process through a speedy, efficient and accurate underwriting service.

 

Read articles by Fraser Barnstaple