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

Unfortunately, things do not always go as expected. Imagine that your parents divorce and that your father later re-marries. You proceed to live happily with your father and step-mother. Sadly, years later, your father passes away. He leaves everything in his estate to his second wife. There is nothing unusual in that and you assume that your step-mother will no doubt leave some of her estate to you. However, upon your step-mother passing away, you learn that everything in her estate has gone to her older children from a previous marriage. You receive nothing. With the percentage of blended families increasing in the UK, this situation is becoming increasingly common. It is in this situation and those akin to it that The Inheritance Act (Provision for Family and Dependants) Act 1975 (the ‘IHA 1975’) may be of assistance.

Testamentary freedom (that is, the right to leave your estate to whomever you please) is seen as a pillar of English law. However, in certain circumstances, the IHA 1975 empowers the Court to make orders for financial provision from a deceased’s estate regardless of what their will or the intestacy rules dictates.

Who can claim?

In order to make a claim, you must fall into one of the following categories:

• the spouse or civil partner of the deceased;
• a former spouse or former civil partner of the deceased, but not one who has formed a subsequent marriage or civil partnership;
• a child of the deceased;
• any person (not being a child of the deceased) who was treated by the deceased as a child of the family; or
• any person who immediately before the death of the deceased was being maintained, either wholly or partly, by the deceased.

What can be claimed?

You can only make a claim where the estate of the deceased fails to make ‘reasonable financial provision’ for you under the terms of their will or under the intestacy rules.

If it has not been made, then the Court is able to order such financial provision as is reasonable in all the circumstances for the maintenance of the applicant. ‘Maintenance’ is not defined by the IHA 1975 but is generally understood to be such provision that allows the applicant to live at neither a luxurious nor a poverty-stricken level. However, a claimant who is a spouse or civil partner of the deceased can claim such financial provision as is reasonable in all the circumstances, whether or not it is required for their maintenance.

The Court can make, for example, any one or more of the following orders:

• an order for a lump sum payment;
• an order for the transfer of property forming part of the deceased’s estate; or
• an order for periodical payments for a specified term.

How will the Court decide?

The Court will consider the following factors, known as ‘section 3 factors’, when deciding whether reasonable financial provision has been made and if not, in what manner it shall exercise its powers to make financial provision from the deceased’s estate:

• the financial resources and financial needs which the applicant has or is likely to have in the foreseeable future;
• the financial resources and financial needs which any other applicant for an order under the IHA 1975 has or is likely to have in the foreseeable future;
• the financial resources and financial needs which any beneficiary of the estate of the deceased has or is likely to have in the foreseeable future;
• any obligations and responsibilities which the deceased had towards any applicant for an order under the IHA 1975 or towards any beneficiary of the estate of the deceased;
• the size and nature of the net estate of the deceased;
• any physical or mental disability of any applicant for an order under the IHA 1975 or any beneficiary of the estate of the deceased; and
• 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.

What is the time limit for bringing a claim?

Court proceedings must be issued within 6 months of the Grant of Probate. However, subject to the Court’s permission, you may be able to bring a claim outside this deadline.

Can adult children make a claim?

Yes, the Court will consider the same factors as set out above. However, these cases can be more challenging to succeed on (as has been evidenced by the recent case of Miles v Shearer).

Conclusion

Considering the strict time limit set out above, if you think you may have a claim, you should seek legal advice as soon as possible. Alternatively, if you are a personal representative or the beneficiary of an estate that is being challenged or that you suspect may be challenged, you should also consider seeking legal advice.

Kuits’ Dispute Resolution team has a wealth of experience in dealing with contentious probate matters, including Inheritance Act 1975 claims, and can assist you with resolving your dispute. Please make enquiries on 0161 832 3434.