A man who successfully challenged his mother's final will is likely to recover the lion's share of...
What is a claim under the Inheritance Act?
The Inheritance (Provision for Family & Dependants) Act 1975, also known as the ‘Inheritance Act’ or ‘1975 Act’ allows certain persons to bring a claim against an estate of a deceased person where ‘reasonable financial provision’ has not been made for them under the terms of the Will or if that person dies without having made a Will.
Who can make an Inheritance Act claim?
The following persons can make a claim:
- a child of the deceased (both minors and adults) including including adopted children or someone who has been treated as a child of the marriage (e.g. step-children;
- a spouse or civil partner of the deceased;
- a former spouse or civil partner of the deceased (who has not remarried or entered into another civil partnership);
- a person who was living continually in the same household as the deceased, as ‘husband or wife’ or as a civil partner of the deceased for a period of two years ending immediately on the deceased’s death (cohabitee);
- any person who immediately before the death of the deceased was being maintained either wholly or partly by the deceased (i.e. someone who was financially dependent on the deceased).
What Is the time limit for bringing a claim?
Court proceedings must be issued within six months of the date of the Grant of Probate. It is therefore important to act quickly and take legal advice quickly if you think you may have a claim.
What if I have already missed this deadline?
It may still be possible to bring a claim but you will have to ask for the Court’s permission to apply out of time.
What will the Court consider?
If you bring a claim, the Court will consider a number of factors to determine whether reasonable financial provision has been made under a will or intestacy and, if not, what order it should make for financial provision from an estate including:
- the financial needs and resources of the applicant and other applicants and beneficiaries, both now and in the foreseeable future;
- the size and nature of the estate;
- any obligations and responsibilities that the deceased had towards any applicant or any beneficiary of the estate;
- any physical or mental disability of any applicants or beneficiaries;
- any other relevant conduct.
The court will also consider other factors depending on the category into which the applicant falls. For example, for a claim by a spouse or civil partner the court will consider the age of the applicant, the duration of the marriage / civil partnership and the contribution made by the applicant to the welfare of the family.
The court will also consider a ‘deemed divorce’ test, ie. what the applicant would have received had the marriage ended in divorce rather death.
What is ‘reasonable financial provision’?
For all applicants except for spouses and civil partners, reasonable financial provision is defined as being ‘such financial provision as it would be reasonable in all the circumstances of the case for the applicant to receive for his maintenance’.
For spouses and civil partners financial provision is not limited to what is required for maintenance.
What can a Court award?
Once all factors have been considered, if the application is successful the court can make a range of awards including lifetime rights to live in a property transfer of a property or a lump sum or periodic payments.
The Court has wide discretion in these matters and factors vary enormously from case to case so it can be difficult to predict the outcome of a claim
Do I need to appear in Court?
Not all claims go to Court. Many can be resolved by alternative methods of dispute resolution such as mediation or negotiation.
I think I have a claim under the Inheritance Act – what should I do?
Given the deadline to make a claim, you should seek legal advice as soon as possible.
Contact Kax Chana on 01827 317070 or kchana@pickerings-solicitors.com
