A year in family provision

This article is an edited version of a talk by Simon Hunter given to the East Anglian Contentious Probate Group meeting at Knights solicitors in Colchester on 5 November 2025.

 

Late 2025 is an apposite time to be looking at the Inheritance (Provision for Families and Dependents) Act 1975 (“the 1975 Act”).  I confess that it took me too long to realise what is patently obvious: this year is the 50^th anniversary of the Act. In fact, the bill became law on 12 November 1975, so this is a particularly good time to think about how the Act has worked, and what kind of challenges it has thrown up.

Interesting though it would be, I am not going to attempt in this article to review 50 years’ worth of cases. What I am going to do instead is to look at cases from the last year or so and then look briefly at what I think the future might hold.

I have taken the phrase ‘the last year’ reasonably loosely.  Of the 10 cases that I have looked at, most post-date the judgment in Hirachand last December, but a couple do not.

In writing these annual case law reviews I have never found it terribly useful to go through the cases chronologically dealing with each in turn. Rather, I prefer to go through them thematically as I think that gives a better overview of the trends in the period concerned. From the 10 cases from the past year that I have decided to focus on, I have identified 5 topics:

1. Eligible Claimants
2. Procedural Issues
3. Size and Nature of the Estate
4. Reasonable Financial Provision
5. Supplementary Orders

I think, taken broadly, these topics probably are representative of the sorts of challenges that have been present throughout the history of family provision.  To that extent, perhaps they are a good review of 50 years of operation of the Act.

Claimants

Turning first, then, to questions of who can, and who does, bring claims under the Act. Of the 10 cases I looked at in preparing this article,  2 of them, for different reasons, will not feature beyond this point. One was a case which turned on the validity of a will, and the judge did not have to engage with the 1975 Act claim at all. The other was a proprietary estoppel claim in which the claimant succeeded on the estoppel.  The judge did give some comment on the 1975 Act, indicating that the claim would have succeeded on that basis too if it had been necessary, but the discussion was limited.

Of those 10 cases, 5 were brought by adult children, 4 by spouses, partners or ex-spouses or partners, and 1 is not actually a case under the 1975 Act at all.  More on that one in just a moment. 6 cases recorded a final result on the 1975 Act claim (including the one that I mentioned a moment ago that principally succeeded on the proprietary estoppel).  2 adult children succeeded, 2 failed.  1 spouse succeeded, 1 failed.

On a completely anecdotal and non-statistical basis, this seems about right to me, given the cases that I see.  The only thing that surprised me a little was that half of the adult children succeeded.  Those two cases, however, were, if I might put it this way, classic success cases.  The first was the proprietary estoppel claim I’ve already mentioned.  The son worked for very little on the farm and lived in the farmhouse.  It was not surprising that he succeeded on the proprietary estoppel, nor that he would have succeeded on the 1975 Act.

The second was a case where the son had been written out of the mother’s will in the early 2000’s.  The court found that this was related to the fact that the son was at the time getting divorced and the mother either (a) wanted to try to protect the son’s inheritance from a matrimonial claim, or (b) wanted to persuade the son to get divorced more quickly.  After the father died, though, the son moved back into the family home and cared for his mother in her last years.  Again, given that he got nothing under the will and was living with the mother and caring for her, it was unsurprising that he succeeded.

The ‘spouse’ who failed was an ex-husband who had been deliberately written out of the will upon divorce.  Again, it is not surprising to me that he failed.

Before I leave the topic of claimants, I want to take you all on a perhaps unexpected field trip to the Upper Tribunal.  HJ v FTT [2025] UKUT 271 (AAC) was a case about the Criminal Injuries Compensation Scheme.  That scheme (for those of you who, like me, might once have been aware of its existence but had forgotten about it) provides compensation to victims of crime in certain circumstances.  One of those circumstances is if you are a qualifying relative of a murder victim.

The definition of “qualifying relative” in the relevant scheme rules is defined, in part as: “(b) the partner of the deceased (other than a spouse or civil partner), who was living with them in the same household and had done so for a continuous period of at least two years immediately before the date of the death” or “(c) a person who would satisfy sub-paragraph (a) or (b) but who did not live with the deceased because of either person’s ill-health or infirmity”.

Those of you who know the 1975 Act really well will immediately spot that this is very similar to the wording of section 1(1A) of the Act: “This subsection applies to a person if the deceased died on or after 1st January 1996 and, during the whole of the period of two years ending immediately before the date when the deceased died, the person was living— (a) in the same household as the deceased, and (b) as if that person and the deceased were a married couple or civil partners.”  Indeed, the UT said that the difference between them was nothing more than drafting style.

In HJ the applicant had been in an on-off relationship with the deceased.  They had lived together, but the deceased had been sent to prison. On his release he was released into supported accommodation and was not permitted to live with her because of his drug addiction.  They resumed their relationship, but he was not able to live with her before he was, sadly, murdered.  The question arose, were they living in the same household?

Compensation was refused by the awarding body, and the applicant’s appeal to the FTT was dismissed, both times on the grounds that the applicant and the deceased were not living as one household, or only not doing so because of ill-health or infirmity.  The UT also dismissed the applicant’s appeal from the FTT.

One of the grounds of appeal to the UT was that the FTT had failed to have regard to authoritative guidance given in a case under the 1975 Act called Re Dix from 2004.  In that case it was held that the mere fact that the claimant and the deceased had had short periods of separation, including for the last 3 months before the deceased died, but had considered themselves to still be in a relationship, did not mean that she was not an eligible claimant.  Against this it was argued that Re Dix was inapposite as the wording was different, but that in any event, it was a question of fact and degree whether two people were living in one household.

UTJ Wikeley agreed that Re Dix was helpful and that it shed light on the relevant scheme rules. But he also went on to reject the submission that Re Dix mandated a finding that the applicant and the deceased were still living in one household. He agreed with the interested party that it was a question of fact and degree and that it was a multi-factorial assessment.  The FTT had “applied its common sense and common experience” and there was nothing to say that it was wrong.

On question such as this the citation of previous cases is seldom that helpful – it is always a factual assessment.  But this case makes clear that decisions about who is and who is not living “in the same household” as the deceased remain difficult questions to answer.

Procedural issues

There have been 3 cases over the past year which give important procedural reminders or guidance.  First, in Nattachai v Burrage [2025] EWHC 568 (Ch) the claim was brought by someone claiming to have been the partner of the deceased for some years before his death. She lives in Thailand. Security for costs was sought. C said that she could not afford more than £30,000, but the court was very unimpressed with her financial disclosure, and found that she had failed to show that security of more than £30,000 would stifle the claim.

But Master Clark was also concerned about the Ds’ budget.  This amounted to around £215,000. In the context of a claim for 1/3 of the estate, that third being worth about £140,000, the Master felt that this was disproportionate.  She ordered £30,000 to be paid in short order, with a further hearing to consider how much more should be ordered.  This is probably a good reminder that the courts, particularly the Chancery Division, are actively concerned about keeping costs in check at the moment.

The next case, AB v B [2025] EWHC 1891 (Fam), was different.  The major asset in the estate was a 50% shareholding in a single company.  The remaining 50% of the shares were held by one other person. It was thought that those shares represented about 75% of the value of the estate. But the last valuation available to the court was from before the pandemic. Various parties sought third-party disclosure from the company concerned to enable an up-to-date valuation to be undertaken. The response from the company was (a) that the valuation was not necessary to decide any party’s case, and (b) that in any event the documents were not really sought for that purpose but to enable the administrator to realise the value of the shares.

Both arguments were rejected. The court has a duty under the 1975 Act to consider the value of the estate when deciding what order to make. So in a case where this asset represents such a large proportion of the value of the estate, a valuation was always necessary. This statutory obligation disposes of both points made. But the court did impose confidentiality to protect the commercial interests of the company and those third parties whose data would be included. This is more routine in the Family Division than in Chancery, so where there is a case requiring confidentiality, it may be preferable to take it in the Family court.

Finally, Keilaus v Houghton [2024] EWHC 2108 (Ch).  This is a real ‘please don’t do this’ sort of a case. C issued a claim protectively a few days before the limitation deadline. Having issued it, C had 4 months to serve it. Negotiations between the parties continued. A couple of weeks before the 4 month deadline, C’s solicitors asked D’s solicitors if they were instructed to accept service. There was no query about whether they were instructed to accept service by email. Shortly afterwards, D’s solicitors said that they were instructed to accept service, and said nothing about email service, the question not having been asked. C’s solicitors missed the email.

Over the next few days and weeks they asked the question again on multiple occasions. D’s solicitors did not answer it again. You might think that rather poor form in the context of the collegiality of the solicitors’ profession, but they were under no obligation to point out that they had already answered it.  The day before the deadline, the claim was served on D personally, and sent by email to D’s solicitors. The trouble is that, having in fact been told that D’s solicitors were instructed to accept service, service on D personally was not good service.  And there being no indication that service by email was accepted, that also was not good service. C applied to extend time or to retrospectively validate the service by email. Both were rejected by Master Clark. There was no good reason to extend time, and C had not taken all reasonable steps to serve in time.  The claim is now dead in the water.

The Estate

Next, the estate, and Cockell v Cockell [2025] EWHC 2490 (Ch).  Sometimes in dealing with the 1975 Act you come across cases where people are clearly all trying their best to be good family members, but the have fundamentally differed in their views as to what that means in practice. In this case the deceased had had a child in Australia by a first relationship. She was C.  The father had then returned to the UK, married and had, I think, 5 children here. He worked as a well-respected tattoo artist. He seems to have maintained some contact with C, but he never told his wife or his other children about her existence. When he died, his will made no provision for C, and it was something of a surprise to his wife to discover that C even existed.

In obtaining probate and in defending the claim, the father’s wife had assumed that the family matrimonial home was held by her and the father as tenants in common in equity, and that a half share of it therefore fell into the estate.  This was worth some £400-500k. Other than that, the only assets in the estate were a few hundred pounds in the bank. Master Bowles held, first, that it was wrong to say that the home was held as tenants in common.  In the case of a married couple both of whom have worked towards a single family life together, the presumption was that the property was held as joint tenants in equity, and there was nothing to displace the presumption.

The Master then went on to consider whether a s 9 order should be made bringing a half share of the property into the estate. His conclusion is worth quoting:

“The effect of an order under section 9 of the 1975 Act is to divest a co-owner legally and beneficially entitled to the entire interest in the previously co-owned property of up to one half of the value of that interest and vest it in the estate of the deceased, contrary to the arrangements previously existing as between the co-owners, with a view to that value being applied to the benefit of an applicant for relief under the 1975 Act, with whom the co-owner may have had no connection whatsoever and to whom the co-owner may have owed no obligation of any sort. That is no small thing and not a course which, in justice to the co-owner, the court should lightly adopt. … Where, however, as in this case, the two co-owners have worked together to purchase the property, in the contemplation that the property would go to the survivor, it does not seem to me that, in the absence of circumstances whereby the surviving co-owner, himself, or herself, owed some form of obligation to the applicant, proper grounds exist to divest the survivor of, in effect, up to one half of his, or her vested property.”

Given that the wife was not aware of C’s existence until after the father’s death, she certainly owed C no obligations. No s 9 order was made.  The estate funds having otherwise been exhausted on funeral costs, there was no estate to divide. In any event, C would have failed on the facts. Pleasingly, and with familial honour, no costs were sought against C.

Reasonable Financial Provision

I can deal with this next aspect quickly.  Two cases, one of which, AB, we have seen before, the other Klein v Cripps Trust [2025] EWHC 688 (Fam), both discuss the relevance of pre-nuptial agreements in 1975 Act claims. Cases involving pre-nuptial agreements are also probably best started in the Family Division, which of course has great experience with them. Neither discussion is long, nor particularly detailed.  The short version is that they are factually relevant but, particularly if they would not have been enforced upon divorce, they are not binding on the court and do not provide any immunity for or protection for particular assets.

Next we have Dean v Groves [2025] EWHC 846.  This was the case that I mentioned earlier where an ex-husband failed in his claim.  This was actually an appeal decision against the dismissal by HHJ Parfitt of the ex-husband’s claim. The deceased and C had been married for 14 years. It is clear that by the end of the marriage the deceased was not at all well – indeed she died within a few weeks of the divorce being finalised. Her last will had been signed just after the divorce proceedings began, and deliberately excluded the soon-to-be-ex husband.  The husband’s claim under the Act was dismissed, and an appeal brought on 4 grounds.  I’m only going to look at one of them, Ground 1.

By this ground the husband said, amongst other things, that Judge Parfitt had erred because he had “conducted the cross-check as though the other spouse was still alive and had financial needs to meet”. Rather, it was said, the cross-check should be undertaken on the (undoubtedly factually correct) basis that the deceased spouse does not have any housing or income needs.  Mr Justice Miles rejected this, saying:

“It seems to me clear from the terms of section 3(2) that the court is required to consider what would have happened in a hypothetical divorce between the parties and it does not provide that, in conducting that exercise, the court must suppose that the needs or other requirements of the deceased spouse are to be ignored. Indeed, it seems to me that is almost an absurd interpretation. By definition, a divorce settlement takes place between two living parties, each with their particular needs and the exercise to be conducted under section 3(2) requires the court to ask what would have happened in such settlement.”

The other grounds of appeal not advancing matters from there, the appeal was dismissed.

Finally in this heading, we have a short point about costs in the post-Hirachand world, in Isaacs v Green [2025] EWHC 1951 (Fam).  The question is whether the logic in Hirachand applies equally to a defendant who is not themselves making a claim under the 1975 Act. Put another way, when considering s 3(1)(c), “the financial resources and financial needs which any beneficiary of the estate of the deceased has or is likely to have in the foreseeable future”, should the court take into account their legal costs. The court held that fairness suggested that he could not: if they are not taken into account under s 3(1)(a), why should they be taken into account under s 3(1)(c)? This would seem to be obviously correct, but it is helpful to have it spelled out.

Supplemental orders

Sticking with Isaacs, one of the features in the case is that the administrator of the deceased’s estate (a solicitor) had sought possession of the deceased’s house in other proceedings. C, having cared for his mother, was living there, as was one other child.  The court decided that the deceased’s will did not make reasonable financial provision for C, and made an award in his favour. That award was 25% of the value of the estate, whatever that should turn out to be.

But the court was also keen to give C and his sister time to try to purchase the property from the estate if they could, and not to penalise them for living there, given their care for their mother.  The judge therefore made some supplemental orders under s 2(4) of the Act to regulate the position.  He ordered (1) that the administrator was not to seek, pursue or enforce any claim for mesne profits or occupation rent for the period before the date of his order (although C and his sister did have to pay thereafter), and (2) he ordered the administrator not to enforce any possession order until at least 6 months after the date of the judge’s order, to give C time to either try to buy the property or to find somewhere to live.

This is an interesting use of s 2(4) to, in effect, regulate other proceedings. Considering the impact of 1975 Act orders is always important (benefits come to mind), and one should always be alive to the possibility of making consequential orders of this sort to ensure that the principal order is not defeated by the law of unintended consequences.

The Future

Finally, I want to spend a little time looking at the future. It is a fool who tries to predict too closely what the future holds in the law, but I have the advantage of a 500-page long crystal ball entitled The Law Commission’s Report on Modernising Wills Law.  This report is with the government for consideration and the only response that I could find was the usual platitudinous “thanks, we’ll take a look”, so I don’t think it is worthwhile spending too long looking at the report at the moment.

But I do think that the report can show us some broad trends that we may see recurring. The first of these is a move towards some more flexibility in interpretation and rectification of wills.  Whilst the impact on 1975 Act claims will not be drastic, it does suggest that it may reduce slightly over time – if the same result can be achieved more easily by interpretation or rectification then a 1975 Act claim would be an unnecessary use of time and resources.  The second is that there seems to be a trend towards putting greater emphasis on testamentary freedom and wishes.  The greater the weight given to testamentary wishes, the less impact the 1975 Act (which is an interference with those wishes) can have.

But set against those there is a particular, albeit very small, suggested change to the Act to strengthen it in the face of mutual wills.  In essence it is suggested that property left under a mutual will should be taken to be in the estate. Given the vanishingly small number of mutual wills that are signed, this is in practical terms almost irrelevant, but it is suggestive of a robustness in determining what is in the estate.  Perhaps we can call it an anti-avoidance trend.

Trying, then, to look both back and forward at the same time, the successes of the 1975 Act are clear from its long history, but challenges remain as they always have.  There is no sign that family provision is going anywhere.  By the time of the next major anniversary, the centenary in 2038 of the 1938 Act, it seems likely that it will still be an important part of this area of law.

 

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Simon Hunter‘s practice ranges across chancery and commercial work, with a particular dual focus on insolvency and companies work and on probate and related matters. To instruct Simon, or find out more, please get in touch.