Inheritance Act Claims
For many years people’s last wishes could only be challenged by disputing the way the will was made. This created an undesirable situation where the last wishes excluded, for whatever reason, people who the law considers should have benefitted from the estate. Equally, where a person died without making a will, the strict intestacy rules can deny those who might otherwise have a legitimate interest in the estate.
The Inheritance Act (Provision for Family and Dependants) Act 1975 provided a means by which a person could seek to challenge the reasonableness of the wishes set out in the will, or the effect of intestacy and ask the court to alter the provisions appropriately.
In order to bring a successful claim, the person challenging the will needs to be able to show that they are one of the specified people entitled to bring the claim, and that the will, or intestacy rules, do not make reasonable financial provision. How the courts interpret the Inheritance Act depends on which type of claimant is making the claim.
Who can claim?
The following are people who may be able to bring an Inheritance Act claim:
- spouse or civil partner
- a former spouse or civil partner who has not remarried
- cohabitees who were living as husband and wife
- a child of the deceased (not limited to those under 18)
- a person treated as a child of the deceased as a result of a marriage
- someone else who was being wholly or partly maintained by the deceased
What can be claimed?
Spouses and civil partners can seek to recover financial provisions as would be reasonable in all the circumstances for the spouse or civil partner to receive. Traditionally, a similarity has been drawn with the situation of divorce but the courts are not bound to follow this approach and can make whatever orders they choose.
All other claimants can seek to recover reasonable financial provisions for their maintenance. This means they need to provide evidence of their income and outgoings and the court will be careful only to award that which is necessary.
There is a time limit of 6 months from the date of the grant of probate. In some cases the grant may not be taken out immediately. It is always a good idea to ask the probate registry to enter a caveat against the person who died. A caveat lasts for 6 months and will tell you when the grant of probate has been made. It will also provide a copy of the will. Caveats can be renewed and there is a small fee to pay in each case.
Claims can be made out of time but there is no guarantee a court would accept your claim and late claims also prevent you from using all of the provisions in the Inheritance Act.
We have been bringing and defending Inheritance Act claims for years and have been involved in particularly complex Inheritance Act claims, including those involving:
- a 60 year old Claimant
- illegitimate children
- disabled claimants
- secret civil partnerships
- apparently insolvent estates
What does the process involve?
Once you ask us to assist you, the courts expect the parties to obtain and exchange information at an early stage. The idea is to see if a claim can be settled without the needing to proceed to court.
If a claim cannot be settled right away, it will usually be necessary to apply to the court for an order. Most cases are settled after proceedings are issued but before the case reaches a final hearing. Cases can take around 12 months to reach a final hearing once proceedings are issued but much depends on individual cases and particularly complicated cases can take longer.
As part of the process, we will gather evidence. This can mean obtaining documents from the estate, or obtaining witness statements. In some cases expert reports are required where, for example, part of the estate is property or land.
Once all the evidence is gathered, the court will list a hearing. The witnesses will give their evidence to the judge and the judge will make the decision based on the evidence and the requirements of the Inheritance Act.
What does the judge consider?
Amongst other things, the court will consider the following factors:
- the financial resources and financial needs which the applicant has or is likely to have in the foreseeable future
- the financial resources and financial needs which any other applicant for an order under the Inheritance Act has or is likely to have in the foreseeable future
- the financial resources and financial needs which any beneficiary of the estate of the deceased has or is likely to have in the foreseeable future
- any obligations and responsibilities which the deceased had towards any applicant for an order or towards any beneficiary of the estate
- the size and nature of the net estate of the deceased
- any physical or mental disability of any applicant or any beneficiary of the estate
- any other matter, including the conduct of the applicant or any other person, which in the circumstances of the case the court may consider relevant.
Acting for Claimants and Defendants means that we understand cases from both sides and gives us an advantage as we understand the different considerations in each case. This can aid settling claims at an early stage in the appropriate cases. Mediation is often appropriate in Inheritance Act claims.
For further information contact us 01392 207020 or email email@example.com