Claims under the Inheritance (Provision for Family and Dependants) Act 1975

Introduction

The Inheritance (Provision for Family and Dependants) Act 1975 (commonly referred to as the “Inheritance Act” or “1975 Act”) enables certain categories of people to apply to the Court and make a claim against a deceased person’s estate, alleging that the deceased did not make reasonable financial provision for them.

Claims can be made whether the deceased left a Will or where they died intestate (ie where they did not make a Will and so their estate is distributed in line with the intestacy rules).

Who can apply?

The Inheritance Act sets out the categories of people who are allowed to apply, namely:

• the spouse or civil partner of the deceased;
• the former spouse or civil partner of the deceased (as long as that person has not remarried/entered into a subsequent civil partnership);
• a person who, for the two years prior to the death, was living with the deceased as spouse or civil partner;
• a child of the deceased;
• a person who was treated as a child by the deceased; and
• any other person who was being maintained by the deceased prior to their death.

A person was being maintained by the deceased if they were financially supported, directly or indirectly, by the deceased.  Examples of maintenance range from gifts given by the deceased during their lifetime, to simply providing an indirect benefit, such as by permitting a person to live rent free in their home.

Applicants must start a court claim within 6 months of a grant of probate or grant of letters being issued.  The Court has discretion to permit claims which are brought after this time, but this is only exercised where there are exceptional circumstances which prevented a person from bringing a claim earlier e.g. where they were too unwell to commence proceedings or they were unaware of their grounds to make a claim.

What will the Court consider?

The Court will consider three questions:

• Does the Will or intestacy make reasonable financial provision for the applicant?
• If not, should the Court intervene so as to award further provision from the estate?
• If so, what type of provision is appropriate?

The question of reasonable financial provision differs depending on which category of person is applying. For most applicants the question is whether what they have received from the deceased’s estate amounts to reasonable provision for their maintenance; whereas for spouses or civil partners of the deceased, there is no requirement that it be for their maintenance - the question is one of reasonable financial provision in all the circumstances.

For all applicants, whether reasonable financial provision has been made will be assessed objectively by the Court, taking into account all of the relevant circumstances. The Inheritance Act specifies certain factors which the Court must consider:

• the current and future financial resources and needs of the applicant and the beneficiaries of the estate,
• any obligations and responsibilities which the deceased had towards the applicant and the beneficiaries;
• the size and nature of the estate;
• any physical or mental disability of the applicant or any beneficiary; and
• any other matter which the Court may consider relevant, for example any party’s conduct.

Where the applicant is a spouse or civil partner, the Court will also consider what they would have likely received had the marriage or civil partnership been terminated by divorce or dissolution rather than death.  Here the Court will therefore consider the age of the applicant, the length of the marriage/civil partnership and the applicant’s contribution to the welfare of the deceased’s home and family.

What can the Court do?

The Court’s powers are very wide and it has numerous options available when making an order.  The Court may award that a specific lump sum be paid to the applicant, either for a particular purchase or for general use.  Alternatively the Court can order that small amounts be paid regularly to the applicant, in the form of periodic payments for their maintenance. If the parties are arguing over a specific property, the Court may order that it be sold and the proceeds split, or that it be transferred to one of the parties outright. The Court may also declare that any property be held on trust for the applicant and/or the other beneficiaries.

Conclusion

In summary, this is a technical and difficult area of law and there are many considerations to take into account when assessing whether a person may have a meritorious claim.  We are experts in this field and can act for either applicants, beneficiaries or the executors of estates which are contested in this way.

If this is an issue which might be relevant to a matter which you are involved in, please contact us for further advice.  Also, please visit our Wills, estate and succession planning pages for further information.