What does the Act do?

The Inheritance (Provision for Family and Dependants) Act 1975 enables a select group of individuals to apply to the Court and make a claim against a deceased person’s estate. This is done where they allege that the deceased did not make reasonable financial (or that akin to financial) provisions for them either through a Will or in line with the rules of intestacy (no Will).

Who can make a claim?

The classes of applicant who may bring a claim is defined under the Act and includes:

  • the spouse or civil partner of the deceased
  • a person who, for the two years prior to the death, was residing with the deceased as if they were a spouse or civil partner
  • a child of the deceased
  • a person who was treated as a child of the family by the deceased
  • the former spouse or civil partner of the deceased (as long as that person has not remarried/entered into a subsequent civil partnership)
  • any other person who was maintained, wholly or partly, by the deceased immediately prior to their death.

The deceased must have died in, and been domiciled in, England and Wales.

A person is deemed as being maintained by the deceased where they were financially supported or partially dependant on the deceased during their lifetime and that maintenance continued immediately death. This can include monetary maintenance in the form of regular payments or large gifts. A provision of housing can also be deemed as maintenance, such as the deceased allowing the claimant to live in their property either rent free or at a nominal or reduced rent.

Timing

To make a claim under the Inheritance (Provision for Family and Dependants) Act 1975, applicants must issue a court claim within 6 months of a grant of probate or grant of letters being issued. The Court has discretion with regards to any claims brought after this time, however, this will only be exercised in exceptional circumstances e.g a person was extremely ill in hospital and unable to make a claim or unaware of grounds to make a claim.

Court Considerations

The Court will consider three main factors when deciding whether a claim could be successful:

  1. Does the Will or intestacy make a reasonable financial provision for the applicant?
  2. Where no, should the Court intervene to award further provision from the estate?
  3. What type of provision was being made previously? Would it be appropriate for this provision to continue?

When looking at what would be deemed as reasonable financial provision the courts will look at the category of the person applying. Commonly, this is a question of whether the amount received from a deceased’s estate amounts to reasonable provision for their maintenance for spouses or civil partners, however, please note that there is no requirement for there to be maintenance. Instead, their must be a reasonable financial provision when taking into consideration all circumstances.

Inheritance Act Provisions 

The Inheritance Act specifies a number of factors which the Court must consider. These include:

  • the size and nature of the estate;
  • the present and future financial resources and needs of the applicant and the beneficiaries of the estate;
  • any obligations which the deceased had towards the applicant and the beneficiaries;
  • any disability (physical or mental) of the applicant or any beneficiary; and
  • any other matter which the Court may consider relevant, for example any party’s conduct.

Spouse or Civil Partner

Where the applicant is a spouse or civil partner, as a starting point, the Court will take into account what each partner would have likely received had the marriage or civil partnership been terminated by divorce or dissolution rather than death.
Therefore, factors including, age of the applicant, the length of the marriage/civil partnership and the applicant’s contribution to the welfare of the deceased’s home and family will all be considered, including looking after the home and caring for the family.

Children

For children, the court will consider the manner in which the child might be expected to be educated or trained. For individuals treated like a child of the deceased, the court will also look at factors including:

  • Whether the deceased maintained them and the duration of which they were maintained.
  • The extent of the maintenance e.g financial, housing, or other.
  • Whether the deceased assumed responsibility for maintaining the applicant
  • Whether the deceased maintained the individual knowing that they were not their own child.
  • The liability on any other person to maintain the applicant.

What can the Court do?

The Court has wide discretion with numerous options available when making an order. The following orders are common place:

  • The Court could award a lump sum to be paid to the applicant, either for general use or a particular purpose.
  • The Court can order smaller amounts of periodic payments to be made to the applicant for maintenance.
  • Where parties are arguing over a specific property, The Court may order that it be sold and proceeds split. Alternatively, that the property should be transferred to just one of the parties.
  • The Court could hold that any property is to be held in trust for particular beneficiaries and/ or the applicant.

Should you need legal help with your contested probate matter, please contact Ansham White Solicitors on 0208 634 5850 and we will be more than happy to assist you.