- claims by spouses
- claims by ex-spouses
- claims by cohabitees
- claims by children
- claims by someone maintained by the deceased
Have you not been left with enough following someone’s death?
If so, contact us now to see whether you can bring a claim under the Inheritance Act.
Or is someone bringing a claim for financial provision from an estate of which you are a beneficiary? Get in touch and we can help you defend that claim.
It can come as a real shock and be very distressing for someone to discover that a loved one’s will doesn’t provide for them adequately, if at all, or that you don’t inherit anything under the intestacy rules (which apply if a person dies without a will). In such situations you may able to bring a claim under the Inheritance (Provision for Family and Dependants) Act 1975 (often referred to as the inheritance act). This Inheritance Act allows the court to vary the will (or the intestacy rules) to ensure that certain people receive reasonable provision from the deceased’s estate.
Who can bring an Inheritance Act claim?
Not everyone who is disappointed about contents of the deceased will or the outcome of the intestacy rules can bring a claim under the Inheritance Act. Only certain categories of people are eligible to apply:
The spouses/civil partner of the deceased
A widow/widower has a particularly strong claim against the estate under the Inheritance Act, a piece of legislation designed to protect people from unfair provision in wills. The court approaches these claims more generously than, for example, claims by adult children, where the provision is likely to be less generous.
A widow/widower can generally expect to be able to enjoy the standard of living that they enjoyed when their partner was alive, assuming of course the estate is big enough. If that provision isn’t made for them, then the court have the power to intervene and to correct the situation.
The ex-spouses/civil partner of the deceased
If your ex-spouse or civil partner has died without leaving you with reasonable financial provision you may be able to bring a claim to retrieve some of the inheritance sum under the 1975 Inheritance Act. This is possible providing that you have not remarried, or that any previous divorce settlement is in place preventing you from making a claim.
For example, if you drew up a pre-nuptial or post-nuptial agreement that had a clause restricting your ability to gain any inheritance, then you might be barred from this. To understand these rules further, and if you are considering bringing a claim for reasonable financial provision following the death of an ex-spouse or civil partner, it is important to seek expert legal advice
Anyone living with the deceased in the two years immediately before their death as their husband or wife
If you have been cohabiting with the deceased in the two years just before their death, as if husband and wife, but have either been left out of the will, or have not been provided for adequately in it, you may be able to claim against the estate of the deceased under the Inheritance Act 1975. This applies to both opposite sex and same sex partners of the deceased.
It is worth noting that the court will not take into account any periods of involuntary separation, for example arising from employment, hospital visits or if one partner is living in a care home. Such occurrences would not ‘stop the clock’ for the two year required period. However, if you voluntary left the shared home and stopped cohabiting, this would count as stopping the clock.
A child of the deceased (biological or adopted), or someone treated as a child of the deceased (e.g. a step child)
In circumstances where a parent has remarried, or has co-habited with a new partner, or where children and parents are estranged, children can be left out of a will, or not provided for fully within it.
A child cannot make a claim against an estate simply because they are the child of the deceased, but rather they will need to show some requirement for maintenance in order to do so. Maintenance refers to necessary material items or income in order to meet the everyday expenses of living, and therefore must not be excessive. It is worth noting that the 1975 Inheritance Act also covers adult children if they are not financially independent. Again, this category of people will need to show a need for maintenance that can be provided by claiming some value from the estate of the deceased.
Someone being maintained by the deceased immediately before their death.
This is a catch all provision within the Inheritance Act 1975 which can be used by people who do not fit within the other categories of people, but still had a relationship with the deceased and were not adequately provided for by the will.
The definition of being maintained is fairly wide and can include the deceased paying or even just contributing to mortgage/rent, paying off debts, paying for school fees or providing someone with a regular income. Anyone who was living the deceased prior to their death for less than two years may still be able to qualify under this section. You will need to show you were being supported and also the basis upon which that support was being offered and accepted. This is something we can help you with when you contact us to enquire about bringing a claim.
What is the test for an Inheritance Act claim?
It is important to realise that even if someone is eligible to bring an Inheritance Act claim, they won’t automatically get something from the estate. It may have been entirely reasonable for the deceased not to have provided for them in their will, or made only limited provision. They may have received a lot of money or financial assistance during the deceased’s lifetime already, they may be financially independent and/or there may be a number of competing claims against the estate, which may not be large enough to satisfy them all.
When assessing what someone is likely to receive from an Inheritance Act, it depends on who is making the claim. For anyone other than a spouse or civil partner, any claim is limited to what is required for their maintenance. For spouses and civil partners, the test is higher – it is what would be reasonable for them to receive in all the circumstances not limited to maintenance.
The Inheritance Act itself sets out a range of factors which would be considered when deciding what a person may receive, if anything. These include:
- their own financial needs and resources
- the size of the estate
- whether any other person is bringing an inheritance act claim
- the resources and needs of the actual beneficiaries of the estate
- any obligations the deceased may have had towards that person
- any physical or mental disability the person claiming may have
- any other matter, including any conduct which may be relevant
Each claim will depend on its own facts so each claim has to be assessed properly.
Is there a time limit for bringing an Inheritance Act claim?
There is a time limit for bringing Inheritance Act claims. They normally have to be issued at court within 6 months from the date of the grant of probate. You can search online to see whether or not a grant has been issued.
Depending on how complex the deceased’s estate is, a grant of probate could be issued only a few weeks after the deceased’s death so this may not leave a lot of time for someone to make a claim. Therefore you should act quickly.
Can an Inheritance Act claim be brought after the initial 6 month period?
It is possible to bring a claim after the 6 months has expired but the court’s permission is needed to do that. The court looks at the full range of factors, such as the reasons for the delay in making the claim, what prejudice would be suffered to the estate and any other beneficiary. There is no guarantee that the court would grant permission even if the delay is only a few weeks. Similarly, just because a claim may be brought many years after the grant, it doesn’t mean that permission would be refused. It will be up to the court to decide and again depends on the individual facts of the case.
Will I have to go to court during an Inheritance Act claim?
Going to court is the last resort. The vast majority of claims settle well before the case gets anywhere near a court room.
Mediation is a common way of resolving Inheritance Act disputes. Mediation is a process where an independent mediator is appointed, who goes back and forward between the parties, trying to assist the parties in reaching a settlement.
What should I do if I’m involved in an Inheritance Act claim?
Whether you think you may have an Inheritance Act claim or a claim has been brought against you, you should act quickly and take specialist legal advice.
Our team have successfully acted for many clients in relation to Inheritance Act claims, both bringing them and defending them. We are very experienced and dedicated and we approach these claims in a professional yet sympathetic manner. Several of our teams are members of the Association for Contentious Trusts and Probate Specialists (ACTAPS).
Our recent cases include defending multiple inheritance act claims brought by both a co-habitee and two nieces (who lived in their aunt’s houses) against the same estate, successfully defending an application for permission to bring a claim nearly 10 years after the grant of probate and acting for a widow who was inadequate provision from an estate worth in excess of £15m which was instead left to charity.
Our Inheritance Dispute Solicitors
We have an experienced team of inheritance dispute solicitors
Andrew specialises in contentious trusts and probate which includes disputes over wills, financial provision claims, disputes with executors, disputes regarding powers of attorney and related claims, including professional negligence claims relating to wills and estates.
He also deals with contested Court of Protection applications.
Andrew is experienced in assisting trusts and charities in resolving disputes through the court process and through alternative dispute resolution, such as mediation.
Andrew is a full member of the Association of Contentious Trusts and Probate Specialists (ACTAPS)
Debra specialises in contentious trusts and probate and represents private individuals, trusts and charities. Her areas of expertise include advising on disputes concerning the validity of wills and applications for rectification and variation. She also acts in claims brought under the Inheritance (Provision for Family and Dependents) Act 1975 for reasonable financial provision from the estate of the deceased. She has a particular interest in claims involving trusts; advising on claims for breach of a trustee’s duties, removal of executors and trustees and claims for a declaration of trusts in assets such as land.
Debra is a member of the Society of Trust and Estate Practitioners (STEP) and a full member of ACTAPS.
Alistair specialises in advising clients on contentious trust and probate matters including but not limited to Inheritance (Provision for Family and Dependants) Act 1975 claims, contentious probate and estate administration disputes, disputes with executors and Will disputes. He is experienced in resolving disputes both through the Courts and ADR including mediation.