If you have been left out of a Will completely, or you believe that the Will does not make enough financial provisions for you, then you may be able to rely upon the Inheritance (Provision for Family and Dependants) Act 1975 to challenge the Will.
The Inheritance (Provision for Family and Dependants) Act 1975 (often called the “1975 Act” or “Inheritance Act”) is an Act of Parliament which allows certain categories of individuals to challenge a Will (or the rules of intestacy if the Deceased passed away without leaving a Will).
In principle, someone making a Will (known as the Testator or Testatrix) has the freedom to decide how they wish to divide their assets upon death. However, the 1975 Act was created to provide a safety net to family members or dependants who are left in financial need because of the terms of the Will.
It is important to understand that a claim under the 1975 Act is not intended to challenge the validity of the Will. There may be grounds upon which a Will can be challenged, but the purpose of the 1975 Act is to enable the court to provide a mechanism to depart from the terms of the Will to meet the needs of family members or those who were dependent upon the Deceased.
Who Can Bring a Claim?
It is not the case, however, that anyone is able to bring a claim under the 1975 Act. In order to bring a claim, the claimant must fall into one of the following categories:
- The spouse or civil partner of the deceased.
- A former spouse or civil partner (provided they have not remarried or formed a new civil partnership).
- A person who lived with the deceased as husband, wife, or civil partner for at least two years immediately before death (cohabitees).
- A child of the deceased (including adult children; no age limit applies).
- A person treated by the deceased as a child of the family (e.g., stepchildren).
- Any person who was being wholly or partly maintained by the deceased immediately before death (financial dependants).
What is “Reasonable Financial Provision”?
What constitutes ‘reasonable financial provision’ for a person will differ depending on whether the claimant was the spouse or civil partner of the Deceased at the date of their death.
In the case of spouses/civil partners, the Court has the discretion to go beyond making an award that simply meets the basic needs of the spouse/civil partner. Instead, the Court can make an award which is equivalent to what the spouse would have received had the Deceased and their spouse divorced (considering factors like marriage duration and contributions).
For all other claimants (including adult children and cohabitees), any financial provision will be limited to what that individual reasonably requires for his or her maintenance (i.e. enough to meet everyday living expenses, neither luxurious nor subsistence-level).
What factors will the Court take into account?
The Court will have regard to the following factors when hearing a claim under the 1975 Act:
- The claimant’s current and future financial needs and resources.
- The needs and resources of other beneficiaries.
- The size and nature of the estate.
- Any obligations or responsibilities the deceased had towards the claimant.
- The claimant’s conduct (e.g., estrangement may reduce chances.)
- Any physical or mental disabilities.
Time Limit for Bringing a Claim
Anyone who considers that they may have a claim under the 1975 Act needs to act quickly. A claim must normally be issued within 6 months of the date of the Grant of Probate (or Letters of Administration if there is no Will). This is a strict deadline, and missing it will require a claimant to persuade the Court that he or she should have permission to proceed with the claim.
Anyone who is considering bringing a claim should obtain specialist legal advice at the earliest opportunity. This will provide enough time for the merits of the claim to be assessed and for any relevant evidence to be obtained. Before issuing a claim, efforts should be made to explore a settlement with the executors of the Estate and the beneficiaries.
Martin Shipway can advise on 1975 Act claims and can be contacted at our Cleveleys office on 01253 824216 or martin.shipway@phhsolicitors.co.uk