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If the will of a deceased person leaves out or makes no provision for a relation, a dependant, or anyone the testator financially maintained or took responsibility for up to the point of death, those people can make a claim for reasonable financial provision from the estate.
Claims against the estate of a deceased person for 'reasonable financial provision' are made using the Inheritance (Provision for Family and Dependants) Act 1975 (sometimes simply referred to as the Inheritance Act) against the personal representatives of the estate and the other beneficiaries under the will (or under intestacy rules).
Such claims have to be made within six months of the date of the Grant of Probate or Letters of Administration if there is no will.
A claim, if successful, will entitle the applicant to 'reasonable financial provision', but how that is defined and how much that might be varies from case to case, as each one is different. A spouse, civil partner, child, someone treated as a child of the family, a co-habitee, or someone financially dependent on the deceased all fall into the categories of person that can make a claim.
If the applicant is a spouse or civil partner, 'reasonable financial provision' may mean that they are entitled to a 50-50 split of assets any husband or wife would ordinarily expect to receive.
However, the concept of 'equal shares' in the context of the Inheritance Act is merely a guide for assessing the reasonableness of any division of the estate. Other factors such as the brevity of the marriage or civil partnership will be considered, so automatic equal division of assets between spouses should never be taken for granted by those using the Inheritance Act to make a claim.
How do I make a claim under the Inheritance Act?
More often than not, people who consider themselves to be overlooked beneficiaries do not have a case for challenging a will, but their grievances can be addressed using the Inheritance (Provision for Dependents) Act 1975.
This does not involve overturning the will or making the will invalid and recognises that the will itself is a perfectly legal and valid document. An award under the Inheritance Act allows for the estate to be distributed in a different way to allow for reasonable financial provision to be made for certain groups of people.
These persons, usually young children who are left out of wills or people who were financially dependent on a deceased person but then were not provided for in the will, can make an application to the court for such reasonable financial provision from the estate of a deceased person.
An application using the Inheritance Act has to be made to the court within six months of the date of the Grant of Representation, but you should seek legal advice from our expert solicitors at Access Legal as soon as you are aware of what provision (if any) has been made for you in a will which you consider insufficient or unfair.
How long will my claim under the inheritance act take?
It is difficult to give precise timescales for these disputes. The Heather Ilott case went all the way to the High Court and the Court of Appeal and took several years to resolve.
In Scotland, the law is different in this area and children (and also a spouse or civil partner) cannot be disinherited from all of the estate, regardless of what a will says, so things can move faster. Children of any age in Scotland have the right to claim a share in the deceased's moveable estate (i.e. everything aside from property and land) and do not have to go to court to ask for any payment.
However long it takes, if an action using the Inheritance Act is successful, the court can award a lump sum or monthly payments. It can also create a trust or order the property belonging to the deceased to be transferred to the applicant.
Whatever order the court makes will depend on the circumstances of the case. That is why it is always better to seek legal advice sooner rather than later. No matter which side of the argument you are on, Access Legal will always try to resolve the dispute as amicably and as quickly as possible.
If I have a case about using the Inheritance Act
In order to make a claim under the Inheritance (Provision for Family and Dependants) Act 1975, the applicant's relationship or connection with the deceased must be one of the following categories:
The recent well-publicised Court of Appeal case involving Heather Ilott means it may be easier for adult non-dependent offspring to make a claim. Mrs Ilott had no contact with her mother or financial dependency on her but was still awarded a significant amount of the estate, despite her mother expressly stating in her will that she did not wish her daughter to receive anything. However ultimately, each case will be decided upon its own facts.
The question most frequently asked about Inheritance Act claims is what exactly is deemed to be reasonable financial provision? This depends on the status of the applicant and their relationship with the deceased. Factors such as the as the length of the marriage or civil partnership, the financial resources and needs of the applicant, any disability that made them financially or physically dependent on the deceased, any other responsibilities or obligations owed to the applicant by the deceased will be taken into account when deciding what provision should be made.
The size of the estate and its value, as well as the purpose and duration of any payments or contributions made by the deceased to someone they 'maintained', will be considered by the court. Claims by former spouses are rare if there was a divorce settlement since it is usual to exclude Inheritance Act claims in any financial settlement order.
Claims using the Inheritance Act cannot be excluded in a will but the deceased may write a 'statement of intention' in their will or a separate document setting out their reasons for making unequal provision (or no provision at all) for a particular person.
If the will is disputed, that statement, whilst unlikely to be binding, may provide insight into their intentions and the reasons for their decision. However, it is ultimately for the court to decide whether to make provision in favour of an applicant, and what that provision may be.
My work involves disputes such as challenges to the validity of a will, claims for reasonable financial provision under the Inheritance (Provision for Family and Dependants) Act 1975, claims for proprietary estoppel, disputes with executors and professional negligence claims.View full profile
I am National Head of the Personal Injury team in Access Legal Solicitors, I have been a personal injury lawyer for over 26 years and I act for individuals who have sustained injuries that have had a significant impact on their quality of life and a lasting impact on their families.View full profile
'You need to have a legal team who are caring, who you absolutely trust and who will tell you the truth. Certainly from our point of view Denise Stephens from Access Legal has been absolutely amazing.'
If you want to challenge a will and feel you may have a claim for reasonable financial provision using the Inheritance Act, call our team of experts at Access Legal for a chat to talk things through.Why Access Legal