I think it is fair to say that most people are surprised when I advise that the court has the power to go behind the deceased’s will, even where there was nothing wrong with it. This is despite the principles of Inheritance (Provision for Family and Dependents) Act 1975 being around for many years.
The Act provides certain relatives and dependents with the opportunity to challenge a will or the rules of intestacy (where the deceased died without a will) if they have not been provided for in the will, or under the intestacy rules. Further, they can lodge a challenge if the provision made for them is insufficient. The claim must be commenced no later than 6 months from the date of the Grant of Probate or, in the case of an intestacy, the Letters of Administration.
The categories of applicants who could make a claim are:
- The spouse or civil partner.
- A former spouse or civil partner who has not remarried or registered a new civil partnership;
- A person who was cohabiting with the deceased as 'husband and wife' for at least two years prior to their death.
- A child of the deceased.
- A person treated by the deceased as "a child of the family" (for example a fostered or step-child).
- A person who was being maintained by the deceased.
If the court is satisfied, the applicant falls within one of these categories it will need to determine ‘what is reasonable financial provision?’ This is where it can become more complicated because the way in which the court will treat a spouse or civil partner is different to how they will treat any other type of relative or dependent.
For a spouse of civil partner the court will simply consider the question – ‘have they been left reasonable financial provision?’ For any other category the question will be – ‘have they been left reasonable financial provision for their maintenance?’
The maintenance point is significant because it often obstructs non-spousal claims where the applicant is unable to demonstrate a need for maintenance from the estate.
These types of claim are inherently unpredictable. One of the reasons for this is because the court has discretion to consider a wide range of factors. These factors include-
- the financial needs and resources of the applicant, both now and in the foreseeable future;
- the financial needs and resources of any other applicant, both now and in the foreseeable future;
- the financial needs and resources of any beneficiary of the estate, both now and in the foreseeable future;
- any obligations and responsibilities that the deceased had towards any applicant or any beneficiary of the estate;
- the size and nature of the estate;
- any physical or mental disability of any applicant or beneficiary;
- any other conduct.
At Kingsfords we have wealth of experience in acting on both sides of these tricky claims. If you would like advice on an Inheritance Act claim, or on any other inheritance dispute or trust dispute, please contact me, Daniel Crook (dbc@kingsfords.net) or another member of our litigation team on 01233 665544.
This note is intended to be for general guidance only and is not a substitute for specific advice. It is based upon our understanding of the applicable rules as at September 2021 and may be affected by subsequent changes.
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