It is a common myth that you can distribute your assets as you wish, so long as you have written a will. Wills can be challenged in court and they can be declared invalid for various reasons. Whilst you may wish to exclude some beneficiaries, such as a spouse or children and leave everything to a cause close to your heart, B P Collins’ contentious probate team advises that family members and dependents may have the legal right to contest your last wishes.
In addition to challenging the validity of a will, certain people can also make a claim under the Inheritance (Provision for Family and Dependants) Act 1975, (“Inheritance Act” or sometimes known as a “1975 Act Claim”) which may be relied on by a spouse, partner, children and dependents to bring a claim against your estate.
An Inheritance Act claim does not question the validity of a will or the applicability of the intestacy rules – it is a claim for reasonable financial provision from an estate, in circumstances where a valid will or the intestacy rules fails to make reasonable provision for certain categories of individuals.
Who can bring an Inheritance Act claim?
Not everyone is able to bring an Inheritance Act claim against an estate. You must be within one of the categories of applicants prescribed by the Act. These are:
- Spouse or civil partner of the deceased;
- Former spouse or civil partner of the deceased (who has not remarried or entered into another civil partnership;
- A child of the deceased;
- Any person who in relation to a marriage or civil partnership in which the deceased was at the time a party, was treated by the deceased as a child of the family (most commonly a stepchild);
- A person who was living 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 (aka a cohabitee);
- Any person who immediately before the death of the deceased was being maintained either wholly or partly by the deceased (i.e. someone financially dependent on the deceased).
The requirements change depending on who is bringing the claim. For spouses, they are usually entitled to reasonable provision from an estate whether or not it is required for their maintenance. For any other claimant they are usually required to show that they require provision to be made for their future maintenance. In most cases (other than with a spouse), the claimant will need to show that they were being maintained by the deceased in some way (for example, being directly given funds, having their living or educational expenses funded by the deceased, or being provided with rent free accommodation).
When should a claim be brought?
The deadline to bring a claim is six months from the date of the Grant of Probate. This is a short time limit and therefore it is important to seek advice as early as possible if you think you have a claim. Claims can sometimes be brought later but only with the permission of the court, which is not guaranteed.
What information does an applicant need to provide?
The court will look at a number of factors to determine whether a reasonable provision has been made for the applicant. These 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; and,
- any other conduct which is relevant to the case.
There may be other factors which are relevant when considering claims made by spouses including the age of the applicant, the duration of the marriage, and what might have happened had the spouse and the deceased divorced before the deceased’s death (the ‘deemed divorce’ test).
If you believe that insufficient provision has been made for you from an estate or you are a personal representative or beneficiary facing a claim from a third party, it is important to seek specialist advice as soon as possible.
If you require advice in relation to an Inheritance Act Claim, please contact our contentious probate lawyers at enquiries@bpcollins.co.uk or 01753 889995.
