If you have been left out of a Will or if a Will leaves you with inadequate financial provision or if you do not inherit on an intestacy (i.e. where someone dies without a Will) you may be able to bring a claim against the deceased’s estate for reasonable financial provision to be made for you.
The starting position in English law is that a person is entitled to make a Will and dispose of their estate as they wish (subject to the formal requirements for making a Will and the requirements of testamentary capacity). However, that freedom is partially restricted by law. The Inheritance (Provision for Family and Dependants) Act 1975 (‘The Act’) allows certain people to challenge a Will on the grounds that the Will does not make reasonable financial provision for them. If the Court finds that reasonable financial provision has not been made and it should have been made, the Court can vary the dispositions effected by the Will, i.e. the Court can vary the Will to make financial provision for you. Alternatively the parties can agree to vary the Will.
Who can bring a claim
The following individuals can bring a claim under the Act:-
1. The deceased’s spouse or civil partner and in some circumstances the former spouse or civil partner.
2. A cohabitee providing they can establish:-
- That the cohabitation had continued for the whole of two years immediately before the death of the deceased.
- That the cohabitee lived in the same household as the deceased.
- That the cohabitee was living with the deceased as his/her husband or wife or civil partner.
Please note that living together for two years does not always mean that this period must be continuous. The Court will take into account the practicalities of relationships, such as the need to be separated for short periods. Living in the ‘same household’ can sometimes cover the situation where the parties have 2 houses.
4. A child of the deceased (including adult children) or any person, not being a child of the deceased, who the deceased, at any time, stood in the role of a parent and who was treated by the deceased as a child of the family.
5. Any person who immediately before the death of the deceased was being maintained, either wholly or partly by the deceased.
What is reasonable financial provision
If you are the deceased’s spouse/civil partner, reasonable financial provision is judged as being such financial provision as is reasonable in all the circumstances whether or not that provision is required for your maintenance.
In all other cases, reasonable financial provision is such financial provision as it would be reasonable in all the circumstances for you to receive for your maintenance.
Factors the Court take into account
In deciding whether the deceased has made reasonable financial provision for you the Court will take into account a number of factors which include:-
1. Your financial needs and resources and the competing financial needs and resources of other beneficiaries. When looking at financial needs and resources the Court will look at:-
- Present and future needs.
- Present and future needs of your dependants and the beneficiaries dependants.
- Future income and capital prospects.
- Monetary liabilities.
2. The deceased’s obligations and responsibilities towards you and any other beneficiary in the Will.
3. The size and nature of the deceased’s estate.
4. Your physical and/or mental condition and that of any other beneficiary.
5. Any matters the Court considers relevant including the conduct of any party.
6. Whether you were maintained by the deceased and if so for what time and on what basis.
This list is not exhaustive; there are additional factors the Court will take into account if you are the deceased’s spouse/civil partner or child.
Orders the Court can make
If a claim is successful, the Court has a wide discretion to redistribute the assets in an estate to produce a fair result. Each case will be judged on its own facts. The Court can make any one or more of the following Orders:-
1. An Order for regular payments of a specified sum to be paid (this is known as an Order for periodical payments/maintenance).
2. An Order for a lump sum payment (i.e. a one off payment) to be paid
3. An Order for the transfer or sale of a property.
4. An Order for the settlement of property (i.e. setting up a trust).
5. An Order for the acquisition of property
6. An Order varying any pre nuptial or post nuptial settlement (or pre or post civil partnership settlement).
If the applicant is in need of immediate financial assistance but it is not yet possible for the Court to make a final decision about the claim, the Court has discretion to make an interim order for a payment or payments to be made from the estate. The Court will only make an interim order if the Court is satisfied there are assets available to meet the applicant’s immediate needs. Any such payments may be taken into account when a final Order is made.
If you wish to bring a claim under the Act you must act quickly. Claims must be issued (i.e. by issuing Court proceedings) before the expiration of six months from the date of a Grant to the estate (i.e. a Grant of Probate or Letters of Administration). This time limit is strict. An application after that date can only be made with the permission of the Court. It is therefore important that you obtain legal advice without delay.
Hart Reade Solicitors is a full-service law firm with offices in Eastbourne, Hailsham, Polegate and Meads. We hold a Lexcel accreditation from the Law Society of England and Wales and are members of Solicitors for the Elderly. To make an appointment with one of our civil litigation solicitors regarding a Will or Probate dispute, please phone our office on 01323 727 321.
Please note that this article does not constitute legal advice. You should always speak to a legal professional to discuss your circumstances and consider your options.