Claiming under the Inheritance (Provision for Family and Dependants) Act 1975

The law in England and Wales provides that a Testator can leave their Estate however and to whoever they want to. Because of this, members of the Testator’s family or dependants may feel they have been unfairly treated if they discover on the Testator’s death that they are not financially provided for under the terms of the Will.

A claim under the Inheritance (Provision for Family and Dependants) Act 1975

This Act provides a potential option for certain classes of people to be able to make a claim against the Estate for financial provision.

Who can claim under the Inheritance (Provision for Family and Dependants) Act 1975?

• The spouse or civil partner of the deceased
• The former spouse or civil partner of the deceased (provided that person has not remarried/entered into a new civil partnership)
• A person who, for the two years before the death, was living with the deceased as if they were a spouse or civil partner
• A child of the deceased including adult children
• A person who was treated as a child of the family by the deceased
• Any other person who was being financially maintained (wholly or partly) by the deceased immediately before their death.

What is reasonable financial provision?

If you are not the surviving spouse or civil partner of the deceased, you can only claim what is required for your reasonable maintenance. Detailed information will need to be provided regarding the applicant’s financial resources and expenditure. Reasonable maintenance means the applicant should be able to live ‘at neither a luxurious nor poverty-stricken level’. The Courts have made clear that the 1975 Act is not to be used by those who are merely unhappy with their share of an inheritance (or lack thereof).

If you are a surviving spouse or civil partner a claim for financial provision under the 1975 Act is not limited to what is required for your maintenance. The court will consider what you could have expected to receive if the marriage had ended in divorce rather than death.

What factors will the Court consider?

The Court must have regard to the following factors listed in section 3 of the 1975 Act:

1. The financial resources and needs which the applicant has or is likely to have in the foreseeable future;
2. The financial resources and needs which any other applicant for an order has or is likely to have in the foreseeable future;
3. The financial resources and needs which any beneficiary of the estate of the deceased has or is likely to have in the foreseeable  future;
4. Any obligations and responsibilities which the deceased had towards any applicant or towards any beneficiary of the estate of the deceased;
5. The size and nature of the net estate of the deceased;
6. Any physical or mental disability of any applicant or any beneficiary of the estate of the deceased;
7. 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.

Awards

The type of awards the Court can make include:

• Lump sum payments
• Periodical payments
• Transfer of property
• A lifetime right to live in a property with the property reverting to the estate upon the applicant’s death.

Time limit for claims

If you wish to bring an Inheritance (Provision for Family and Dependants) Act claim it must be issued at court within six months of the grant of probate (or the grant of letters of administration) in the deceased’s estate.

An executor’s role

The executor owes a fiduciary duty to all beneficiaries of the estate and is expected to maintain neutrality in any 1975 Act claims. It should be the main beneficiaries who actively defend any claims brought. As the executor remains impartial, they will generally be able to recover any costs related to the matter out of the estate. However, if they unnecessarily incur costs in defending the claim, they could be personally liable for their own costs, and even those of the claimant. Where the executor is also a beneficiary to the estate, costs incurred in defending a claim will generally not be paid out of the estate.

How Pinney Talfourd can help

If you believe you have been unfairly treated in a will or are facing financial difficulties due to a lack of provision, don’t hesitate to reach out to our Contested Wills and Probate team.

Our experienced team is here to guide you through every step of the process, ensuring your rights are protected and your case is presented effectively.