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Claims Under Inheritance Act 1975

4 February 2021

CLAIMS UNDER INHERITANCE (PROVISION FOR FAMILY AND DEPENDANTS) ACT 1975

Occasionally, beneficiaries of a Will may be disappointed with what they have received from the estate of a deceased individual. In some instances there are also individuals who are completely left out of the Will.

The Inheritance (Provision for Family and Dependents) Act 1975 enables certain individuals to claim reasonable financial provision from an estate. For example, a surviving spouse or partner may receive a share from an estate, but believe that he/she is entitled to more. Another example is an estranged child of the deceased being completely left out of the Will. In such circumstances, the relevant parties are able to bring a claim against the estate and make a request to the Court for reasonable financial provision from that estate.

Concerned individuals can rely on the Inheritance Act 1975 whether the deceased has left a Will or not. In order for the Act to apply, it is not necessary for the applicant to reside in England or Wales. On the other hand, the statute does require that the deceased, at the time of death, must have been domiciled in England or Wales. Additionally, if the deceased has assets outside of England and Wales, the applicant can still make a claim concerning those assets.

Claims brought under the Inheritance Act 1975 are usually resolved within a year; however, you should keep in mind that each case is unique and quick resolution of the claim depends on the individual facts involved. Often, parties choose to resolve disputes before a Court hearing through methods such as negotiation and mediation. Choosing these alternative ‘dispute resolution methods’ can result in the matter being resolved more quickly and at a smaller cost than if the matter were to proceed all the way to Court for a Judge to decide.

WHAT DOES REASONABLE FINANCIAL PROVISION MEAN?

Anyone claiming under the Inheritance Act 1975 is essentially asking the Court for reasonable financial provision from the estate of a deceased person.

The term “reasonable financial provision” means a suitable financial provision that the applicant is entitled to receive for his / her maintenance, keeping in mind all the relevant circumstances. This definition is applicable for all categories of individuals eligible to bring a claim aside from spouses and civil partners of the deceased.

Whilst Spouses and Civil Partners of the deceased can receive financial provisions that are not limited to their maintenance (Spouses and Civil partners of the deceased do not have to be in financial need in order to make a claim), other applicants who fall outside of that category will be limited to receive a financial provision that is necessary for their maintenance only.

INDIVIDUALS ELIGIBLE TO MAKE A CLAIM UNDER THE INHERITANCE ACT 1975

The following individuals are eligible to file a claim as provided in Section 1(1) of the 1975 Act:-

1. Spouse or Civil Partner of the deceased;

1. Former wife, husband or civil partner of the deceased, with the added condition that the former spouse or civil partner has not remarried or engaged in a new civil partnership;
2. A person who, for the two years prior to the death, was living with the deceased as spouse or civil partner
3. Children of the deceased. This category includes both minor and adult children; however, it should be noted that claims are more likely to be successful for minors as it is easier to prove their dependence on reasonable financial provisions from the estate;
4. Anyone who was not the child of the deceased but as a result of a marriage (in which the deceased participated), the former was treated as a child of the family by the deceased;
5. Anyone who does not fall in the above categories but was being maintained by the deceased (partly or wholly) immediately before the deceased’s death.

TIME LIMITS OF CLAIMS BROUGHT UNDER THE INHERITANCE ACT 1975

Anyone wishing to bring a claim under the 1975 Act must do so within the time limits provided under Section 4; a claim must be brought within 6 months of the letter of administration or grant of probate. In some exceptional circumstances however, the court may allow applicants to bring a claim outside of this time limit.

The following are examples of questions that the court may consider when deciding whether a claim brought outside of this time limit should be allowed to proceed:-

• What is the likelihood of the claim succeeding?
• During the 6-month period, did the applicant engage in any alternative dispute resolution methods with the beneficiaries or executor of the estate?
• Has the relevant estate been distributed to the beneficiaries?
• What prevented the applicant to bring a claim outside the time limits?
• How quickly after the time limit was the claim brought?
• If the application is not allowed to proceed, will the applicant have any other forms of redress available?

HOW DOES THE COURT REACH A DECISION?

Before making any decision, the Court will consider the financial provision that the applicant has already received (if any) from the estate of the deceased. It will then determine whether this provision is reasonable. The Court will decide this, keeping in mind the factors laid down in Section 3 of the Inheritance Act 1975, which are as follows:-

• What are the current financial needs and resources of the applicant?
• What are the future financial needs of the applicant?
• What are the current financial needs and resources of another applicant bringing a similar claim against the same estate?
• What are the future financial needs of another applicant bringing a similar claim against the same estate?
• What are the current financial needs and resources of other beneficiaries?
• What are the future financial needs of other beneficiaries?
• Whether the deceased had any responsibilities or obligations owed to the applicant?
• Whether the deceased had any responsibilities or obligations owed to another applicant bringing a similar claim against the same estate?
• What is the nature and size of the estate?
• Does the applicant, beneficiary or another applicant have any physical or mental disability?
• Any other relevant circumstances.

Additionally, if the applicant is the spouse, civil partner or former spouse or former civil partner of the deceased (and has not remarried or engaged in a new civil partnership), then the Court will not only consider what the applicant needs for his/her maintenance but will also consider other factors:-

• The age of the applicant;
• Duration of the applicant and deceased’s marriage or civil partnership;
• If the applicant made any contributions to the welfare of the relationship or family;
• If the applicant and the deceased, by the time of the deceased’s death, have not separated or ended their marriage or civil partnership, what would the applicant have received had the marriage ended with divorce instead? (This factor is most commonly referred to as the “deemed divorce test”)

If the applicant is a child of the deceased or is considered a child of the deceased, the Court will also consider the following factors:-

• In which manner was the applicant being educated or trained?
• In which manner did the applicant expect to be educated or trained?
• If the deceased had assumed responsibility for maintaining the applicant, what was the basis for doing so and what was duration and extent of this responsibility?
• In maintaining the applicant, was the deceased aware that the applicant was not his/her child?

If the applicant is not falling within these categories, but was being maintained (partly or wholly) by the deceased immediately before their death, the Court will also consider the following factors:-

• What is the earning capacity of the applicant?
• If the deceased had assumed responsibility for maintaining the applicant, what was the basis for doing so and what was duration and extent of this responsibility?
• Any other relevant factors.

ORDERS THAT A COURT CAN MAKE UNDER THE INHERITANCE ACT 1975

A Court does not have to decide in favour of a Claimant. It will only do so if the Claimant has successfully established that he / she is entitled to the specified financial provision from the estate of the deceased. The burden of proof is on the applicant in such cases.

The Court, in addition, has a wide discretion as to how the estate of the deceased can be distributed. Section 2 of the Inheritance Act 1975 enables Courts to make the following types of orders:-

1. Interim orders of payment / payments to be paid to the applicant from the estate while the case is being heard, provided that the applicant needs immediate financial assistance;
2. Enabling the applicant to receive periodical or regular payments from the estate for the duration that the Court deems reasonable;
3. The applicant is to receive a lump-sum payment from the estate;
4. The beneficiaries to transfer the title of a property (from the estate) to the applicant;
5. Settlement of property for the benefit of the applicant;
6. An order requiring a property to be purchased with the assets / funds of the estate. That particular property is then required to be transferred to the applicant or there could be a settlement of property for the benefit of the applicant;
7. An order that changes the terms of any agreement between the applicant and the deceased such as pre-nuptial, post-nuptial agreement, pre-civil partnership or post-civil partnership agreement.

Speak to our specialist solicitors about your individual situation and we will help you to get your affairs in order in the most tax efficient way possible. If you have been excluded from a Will, or believe you should have received more from a deceased’s estate, contact us to discuss your options.