When someone dies and family members consider they have not been provided for adequately under the terms of a Will, it may be possible to bring a claim against the Estate.
These claims are brought under the Inheritance (Provision for Family and Dependants) Act 1975. This Act sets out the basis upon which a person can bring a claim for financial provision from an Estate, whether or not a Will exists.
Strict conditions must be met before a claim can proceed.
Who can bring a claim?
Only certain people can bring a claim under the Inheritance (Provision for Family and Dependants) Act 1975:
- A spouse or civil partner;
- A former spouse or former civil partner, unless they have re-married or entered into a new civil partnership;
- Any person who, in the two years immediately before the date of death, lived in the same household as the deceased either as their spouse or civil partner;
- A child of the deceased;
- Any person who was treated by the deceased as a child of the family; and
- Any person who, immediately before the death, was being maintained, wholly or partly, by the deceased.
Claims can generally be made if a person has been completely excluded from an Estate or where it can be shown that the financial provision they receive from an Estate is not reasonable.
What will a Court consider?
Each claim has to be considered on its own individual circumstances. A Court must apply the same principles to every case when it looks at what reasonable financial provision will be. The factors the Court must weigh up are:
- The financial resources and needs which any claimant and/or beneficiary have or are likely to have;
- Any obligations and responsibilities which the deceased had towards any claimant or beneficiary of the estate;
- The size and nature of the net estate;
- Any physical or mental disability of any claimant or any beneficiary; and
- Any other matter, including the conduct of the claimant or any other person.
Specific factors, such as the duration of marriage and age of a spouse may also be relevant.
Time limits
Time limits apply for the making of an application for provision. A claim should usually be made within six months of the date of issue of the Grant of Probate or Letters of Administration so if you think you need to make a claim it is important to seek legal advice as soon as you think you may wish to bring a claim.
In some rare cases a claim can be made outside that six month time limit.
How are claims resolved?
In many case claims can be resolved by negotiation with the other parties involved. This may be through discussions with solicitors representing the Estate and other beneficiaries or Claimants or through more formal mediation.
If agreement cannot be reached then a Court may be asked to make an Order. Going to Court is usually a last resort as it is a time-consuming, stressful and expensive process but if there is no alternative then a trial will determine the way in which the Estate should be administered.
For more information, please contact a member of our Contentious Trust & Probate team.
The information on this site about legal matters is provided as a general guide only. Although we try to ensure that all of the information on this site is accurate and up to date, this cannot be guaranteed. The information on this site should not be relied upon or construed as constituting legal advice and Howes Percival LLP disclaims liability in relation to its use. You should seek appropriate legal advice before taking or refraining from taking any action.
