In short – ’litigation risk’, i.e. uncertainty of judicial outcome and irrecoverable costs incurred – for all parties involved.

Causes of uncertainty in advising about legal merits include:

·       Inheritance Act cases are evidentially highly ‘fact-sensitive’ claims.
·       While the purpose of the Inheritance (Provision For Family And Dependants) Act 1975 is to make ‘reasonable provision’ for an ‘eligible claimant’ having regard to the matters set out in s.3, the s.3 process itself, is not a ‘weighing’ or ‘balancing’ process.
·       No single factor can determine the success or failure of a claim, i.e. there is never any guarantee of success.
·       The answer to the threshold question ‘has reasonable financial provision been made for the Claimant ?’, is arrived at by a judge making a ‘value judgment’ based upon all of the s.3 factors.
·       The court has no jurisdiction to rewrite a will simply because the scheme of gifting under its terms is, or is perceived to be, unfair.
·       The exercise of the court’s powers comes into play where the threshold question is answered in favour of the Claimant, however, in the case law, there has been a wide divergence between the views as to ‘quantum’ taken at first instance and on appeal.
·       Furthermore, relatively little of the case law has been judicially expounded at a level where the judgment would create a precedent.
·       As Allardice concludes in ‘Of greatest benefit’ (2015) T.E.L & T.J 170, 8-12 (see the 5th Edition of Ross on Inheritance Act Claims (2023) para E-069) – ‘while the case law provides a picture of the 1975 Act landscape, it reveals very few landmarks.’

So, any advice given by a Solicitor or Barrister about the likely judicial outcome of litigation in an Inheritance Act claim, must be taken with a large dose of salt, because no party can ever be certain with any degree of mathematical precision, about what the actual outcome will turn out to be in reality. Particularly, if the case is being heard in a County Court.

That is because no matter what your legal advisors may say, in ‘reality’ i.e. because of the litigation risks highlighted above, the case law, and lack of judicial guidance and precedents in these cases, there is no such thing as an ‘iron-clad’ Inheritance Act claim. That is a fiction.

In other words, these cases are always high risk litigation i.e. a gamble!

So, unless a Claimant has to go to court for some reason, then why not do a deal instead in Mediation?

My next live Zoom webinar to be presented to members of the Standing Conference of Mediation Advocates worldwide in 2025 is entitled – ‘Mediation Advocacy in the Tax-Efficient Settlement of Inheritance Act, Beneficial Interest & Proprietary Estoppel Claims.’

This is provisionally scheduled for the afternoon of Thursday 20 November 2025.