Many claims against an estate centre around the fact that the Deceased did not make reasonable financial provision for a loved one. This might be because the Deceased made a Will which left the love one out (intentionally or otherwise), or because the Deceased didn’t make a Will and the rules of intestacy mean the loved one isn’t provided for. In these circumstances, certain people are eligible to make a claim under the Inheritance (Provision for Family and Dependants) Act 1975.
Points to note:
It is important to appreciate that many cases are settled out of court.
Before delving into the technicalities of the Act, it’s important to understand that the Act requires the court to objectively assess whether the Will (or intestacy) fails to make reasonable financial provision for the person bringing the claim. This assessment will be made in light of the circumstances of the case and the standard of assessment that applies to the claimant. If the court decides the Will fails to make reasonable financial provision, it will then assess how much is reasonable based on a range of factors.
The court should not make a subjective assessment of whether the way the Deceased left his or her estate was morally correct. This is not the correct way to approach the Act. If this seems like a complex point, it will become more clear when looking at specific cases and examples.
When a case does go to court, the Claimant has the burden of demonstrating that reasonable financial provision should be made.
The claim if successful will be paid from the net estate. This means certain property is excluded. Exactly which property can be subject to a claim is defined by the Inheritance Act at Section 25(1).
Who can make a claim?
The following people may make a claim under the Inheritance Act:
(a) the spouse or civil partner of the deceased;
(b) a former spouse or former civil partner of the deceased, but not one who has formed a subsequent marriage or civil partnership;
(ba) any person (not being a person included in paragraph (a) or (b) above) to whom subsection (1A) or (1B) below applies;
(c) a child of the deceased;
(d) any person (not being a child of the deceased) who in relation to any marriage or civil partnership to which the deceased was at any time a party, or otherwise in relation to any family in which the deceased at any time stood in the role of a parent, was treated by the deceased as a child of the family;
(e) any person (not being a person included in the foregoing paragraphs of this subsection) who immediately before the death of the deceased was being maintained, either wholly or partly, by the deceased;
(1B) This subsection applies to a person if for the whole of the period of two years ending immediately before the date when the deceased died the person was living—
(a) in the same household as the deceased, and
(b) as the civil partner of the deceased.
Some key points to note about who can claim:
1(b) a former spouse or civil partner of the deceased who has not remarried may be able to make a claim. However, quite often a ‘Consent Order’ / ‘Clean Break Order’ is made as part of the divorce / dissolution proceedings. This may state that no claim can be made against each parties’ estate. It is worth checking the order carefully (the writer has seen orders where only ONE party is barred from claiming against the other’s estate).
Cohabitees are not provided for under the rules of intestacy (regardless of the length of cohabitation or whether they had children with the Deceased). A cohabitee may therefore claim under Section 1B (if they cohabited up to the Deceased’s death for at least two years) or if not applicable, Section 1(e).
If you believe you may have a claim against an estate, get in touch for a chat without obligation.