Disappointed beneficiaries often find themselves navigating a complex web of potential probate claims against an estate. Some of the most common probate claims involve challenging testamentary capacity, asserting undue influence, bringing a proprietary estoppel claim or pursuing various trust-based claims. Claims under the Inheritance (Provision for Family and Dependants) Act 1975 (“the 1975 Act”) are often added at the end of a long list of claims as if they are an afterthought and given little priority during the initial stages of a probate dispute.

It is worthwhile considering the significant advantages of prioritising a 1975 Act claim which is distinctive as it is a claim concerning the division of the net estate rather than a hostile claim against the estate.

  1. Broad jurisdiction under the 1975 ActPro

One of the key advantages of pursuing a 1975 Act claim lies in the court’s broad and discretionary jurisdiction. In this respect, the 1975 Act provides considerable flexibility as the court has broad powers when it considers what type of provision to award.

  1. Lower evidential burden

Hostile probate actions, such as those challenging testamentary capacity or those making a trust-based claim, often require more extensive investigations and the expense of obtaining expert medical or forensic accounting evidence. This is because, unlike a claim based on the 1975 Act, they demand strict proof on narrow grounds. Moreover, if witnesses fail to present their evidence effectively in court, a hostile probate claim is more likely to stumble. As a result, there is a lower evidential burden when mounting a 1975 Act claim.

  1. Reduced personal risk as to costs

Costs are more likely to come out of the estate following a 1975 Act claim compared to hostile probate actions where the costs usually follow the event and may involve personal liability. However, there is no cast-iron guarantee of this and failure in a 1975 Act could lead to adverse costs orders.

  1. Reduced procedural complexity

Hostile probate actions and claims under the 1975 Act cannot be brought in the same proceedings. If multiple claims are pursued, this will add to the complexity of the case and inevitably increase costs.

  1. Prioritising claims during proceedings

It is vital claims are heard in the correct order when multiple claims are brought. A claim based on estoppel or constructive trust must be determined before the 1975 Act can proceed. This is necessary as it will be impossible to determine the means of the claimant or the value of the deceased’s net estate without settling these claims first.


Disappointed beneficiaries face several challenges when prioritising probate claims and there are unique advantages to claims under the 1975 Act. Too often, probate disputes become bogged down in the pursuit of too many claims when it is clear there is a front-runner which should have been prioritised. By choosing the most suitable probate action at the outset, beneficiaries can navigate the legal process with clarity and purpose in the most cost-efficient way.

The author, Alistair Rustemeyer, qualified as a solicitor in 1994 and an accredited mediator in 1999. Alistair is a member of the Association of Contentious Trust and Probate Specialists and is highly specialised and experienced in advising clients across a range of contested probate and Inheritance Act claims. For an initial free discussion please contact Alistair at: 01273 044516 or email alistair.rustemeyer@cognitivelaw.co.uk.