Wills: inheritance claims

Answer

If you fear a claim under the Inheritance (Provision for Family and Dependants) Act 1975 (IPFDA) but your client does not wish to make provision for the potential claimant, she should be encouraged to leave a memorandum with the will explaining why no provision was made, unless your client's reasons for making no provision are unreasonable, in which case the memorandum could do more harm than good.

There appears to be a trend in IPFDA actions towards the introduction of parallel claims - proprietary estoppel, declarations as to beneficial interests, mutual will obligations, claims based on a contractual relationship with the deceased - to bolster inheritance claims. Such claims are based on a combination of the deceased's intentions and of fact. The claim will only be made after the deceased's death. Often there are no independent witnesses so the surviving claimant is free to give their version of the deceased's intentions, unchallenged.

With this in mind, it may well be appropriate for a detailed attendance note of the initial instructions to be copied to the client with the draft will. The client should be asked to confirm the attendance note details are correct when confirming instructions to engross the will. The attendance note should be kept, as with any memorandum, with the will. At least then there is an accurate record of the testator's intention.

Please see the Law Society's Probate Practitioner's Handbook 6th Edition, this publication may be purchased from our online bookshop.