Few areas of contentious probate generate as much heat, or as much uncertainty, as the role of conduct in claims under the Inheritance (Provision for Family and Dependants) Act 1975. Whether a claimant’s bad behaviour should disentitle them, or the deceased’s bad behaviour should strengthen the claim, arises with regularity.
The case law reveals a nuanced picture: conduct matters, but it is neither a gateway nor a bar. It is one factor in a multi-factorial assessment, and the weight it carries depends entirely on context.
The Statutory Framework: Section 3(1)(g)
Section 3(1)(g) of the Inheritance Act 1975 requires the court to have regard to:
“any other matter, including the conduct of the applicant or any other person, which in the circumstances of the case the court may consider relevant.”
Two features of this provision are significant. First, conduct sits within a catch-all category, “any other matter”, rather than occupying an elevated position. It is one factor among many under section 3, alongside financial needs (s.3(1)(a)), the size of the estate (s.3(1)c), and the obligations the deceased had towards any applicant (s.3(1)(d)).
Second, the language imposes no threshold. The court must consider conduct that it “may consider relevant.” There is no requirement that the conduct be “gross and obvious,” no requirement that it would be “inequitable to disregard” – simply a broad discretion to weigh whatever conduct the court considers pertinent. This stands in marked contrast to the position in divorce, as discussed below.
Applicant Conduct: Estrangement and Its Causes
The most frequently encountered form of conduct in 1975 Act claims is estrangement. The question is not simply whether estrangement existed, but why, and who was responsible.
Estrangement Is Not a Bar
The Supreme Court’s decision in Ilott v The Blue Cross [2017] UKSC 17 is the leading authority. Mrs Ilott had been estranged from her mother for 26 years. The mother left her entire estate, worth approximately 486,000 pounds, to animal charities. Despite the duration of the estrangement, Mrs Ilott succeeded. The Supreme Court restored a modest award of 50,000 pounds, but the critical point of principle is that estrangement did not bar the claim. The court treated it as a factor that constrained the level of provision, not a threshold that prevented provision altogether.
The reasons for the estrangement mattered. Mrs Ilott had left home to be with the man she later married; her mother had disapproved. The court did not treat this as conduct that told against her.
Where the Applicant Caused the Estrangement
The position is materially different where the estrangement is the applicant’s own doing. In Wright v Waters [2014] EWHC 3614 (Ch), an adult daughter’s claim failed where her conduct, refusing to return £10,000 her mother had transferred to her for investment and writing to her mother telling her she was “not fit” to be called a mother, was held to outweigh all factors in her favour, making it objectively reasonable for no provision to be made from her mother’s net estate of approximately £138,000.
The principle is straightforward: if the applicant caused the breakdown, this is a significant negative factor. It does not necessarily defeat the claim, the court retains a discretion, but in practice it makes success materially harder, particularly for adult children limited to the maintenance standard. In Wellesley v Wellesley & Ors [2019] EWHC 11 (Ch), the adult daughter of the 7th Earl Cowley received only a £20,000 legacy from a £1.3m estate. The court considered that Tara Wellesley chiefly bore blame for the estrangement, including drug abuse and a lifestyle that affronted her father’s strict moral code. Her responsibility for the extremely long estrangement outweighed the factors in her favour.
Violence and Abuse
Where the applicant was violent towards the deceased, courts treat this as a factor of considerable weight. Physical violence or sustained abuse directed at the person from whose estate the applicant now seeks provision creates an obvious tension with the concept of moral obligation. A child who assaulted or abused their parent will struggle to establish that the deceased owed them an obligation the court should enforce after death.
The Deceased’s Conduct: When Bad Behaviour Supports the Claim
Conduct is not a one-way inquiry. Section 3(1)(g) refers to the conduct of “the applicant or any other person,” including the deceased.
Where the deceased was responsible for the estrangement, through abuse, neglect, or abandonment, the court may treat it as a factor that supports rather than undermines the claim. An applicant who distanced themselves from an abusive parent should not be penalised for the resulting estrangement.
Where the applicant provided care and support to the deceased, this is a significant positive factor. In Nahajec v Fowle [2017], the deceased’s conduct, described as “stubborn and intransigent”, was found to be at fault for the estrangement. The daughter was awarded £30,000 from an estate of approximately £265,000. The deceased’s culpability for the breakdown grounded a moral obligation, one the court was prepared to enforce through provision.
The Divorce Comparison: Different Thresholds
A useful comparison is the treatment of conduct in financial remedy proceedings under the Matrimonial Causes Act 1973. Section 25(2)(g) requires the court to have regard to:
“the conduct of each of the parties, if that conduct is such that it would in the opinion of the court be inequitable to disregard it.”
The critical difference lies in the qualifier. In divorce, conduct is only relevant if it would be “inequitable to disregard.” The courts have interpreted this as a high threshold. In Miller v Miller; McFarlane v McFarlane [2006] UKHL 24, the House of Lords confirmed that only conduct that is “gross and obvious” affects the financial outcome. Routine misconduct, even conduct that contributed to the breakdown of the marriage, will not ordinarily alter the division of assets.
Under the 1975 Act, the threshold is plainly lower. Conduct need only be “relevant.” The court has a broader discretion, and the case law reflects this: estrangement, caring responsibilities, violence, and other behaviours are routinely considered, even where they might not meet the standard required in divorce.
The Divorce-vs-Death Crossover
A distinct problem arises where a spouse dies during divorce proceedings. If the marriage has not been dissolved at the date of death, the surviving spouse retains the right to claim under the 1975 Act as a spouse, on the more generous standard not limited to maintenance.
The conduct issues from the divorce become directly relevant to the 1975 Act claim. Allegations of financial misconduct, domestic abuse, or unreasonable behaviour that were live in the divorce will inform the assessment under section 3(1)(g). But the evidential landscape is altered: the deceased cannot give their account. The surviving spouse’s version is no longer tested against the other party’s evidence, creating an asymmetry courts must navigate carefully.
Section 15 of the Inheritance Act 1975 (as amended by the Divorce, Dissolution and Separation Act 2020 to reflect the replacement of decrees with divorce orders) addresses this position. Where a conditional divorce order has been made but not yet become final at the date of death, the court may on application order that the surviving party shall not be entitled to apply under section 2. The surviving spouse remains a spouse for 1975 Act purposes unless such an order is made, and the conditional order and the conduct underlying it form part of the factual matrix.
Practitioners advising in this situation must recognise that conduct arguments from the divorce will follow the claim into the 1975 Act proceedings, but will be assessed against a more permissive statutory framework.
Evidential Considerations
The evidential challenges deserve emphasis. The deceased cannot give evidence. Their account of the relationship and the circumstances of any alleged misconduct must be pieced together from other sources.
Contemporaneous documents carry the greatest weight. Police reports, social services records, medical records, and correspondence written at the time of relevant events are substantially more persuasive than retrospective witness statements. Witnesses who come forward after the death will be scrutinised carefully, particularly where they have an interest in the outcome.
Statements of reasons prepared by the testator during their lifetime can be highly relevant. A testator who explains why they excluded a particular person provides the court with direct evidence of the conduct that influenced their decision. Such statements are not determinative, but they can be influential.
Practitioners should advise clients to gather and preserve contemporaneous evidence early. Where conduct is a live issue, the documentary record may prove decisive.
Practical Guidance for Practitioners
Assess conduct on both sides. The deceased’s conduct is as relevant as the applicant’s. A thorough investigation of the relationship from both perspectives is essential before advising on prospects.
Frame conduct through moral obligation. Conduct operates on moral obligations in both directions. Caring and support create or strengthen them; violence and abandonment may destroy them. Presenting conduct evidence in these terms is often the most effective approach.
Respect testamentary freedom. Where the applicant’s own behaviour provides a rational explanation for exclusion from the Will, courts will be slower to intervene. Conduct informs the balance between the applicant’s need and the deceased’s right to dispose of their estate as they wished.
Be candid about risk. The broad discretion under section 3(1)(g) means few bright-line rules. Practitioners should be frank with clients about how conduct on either side is likely to be perceived.
Conclusion
Conduct under the 1975 Act is neither a bar to a claim nor a guarantee of success. It is a factor, sometimes a significant one, in a broad evaluative exercise. The statutory framework gives the court a wide discretion, unconstrained by the elevated threshold that applies in divorce, and the case law shows that courts will examine the behaviour of both applicant and deceased in determining what provision is reasonable.
For practitioners, the key lesson is that conduct arguments cut both ways. They must be investigated thoroughly, evidenced rigorously, through contemporaneous documents rather than retrospective accounts, and presented within the framework of moral obligation and testamentary freedom that underpins the Act. The cases from Ilott to Isaacs to Nahajec demonstrate that the court’s approach is fact-sensitive and contextual. There are no shortcuts, and there should be no assumptions.
This article is for general information only and does not constitute legal advice. Every case turns on its own facts. If you require advice on a specific situation, please contact Fifty Six Law directly.
