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Bringing a claim against an estate under the 1975 Inheritance Act

Bringing a claim against an estate under the 1975 Inheritance Act

If you are concerned that someone close to you has died without making adequate provision for you in their will, or if they have died without making a will and no provision is made for you under the rules of intestacy, you may be able to bring a claim against their estate under the Inheritance (Provision for Family and Dependants) Act 1975 (the 1975 Act).

The 1975 Act allows certain categories of people to bring a claim against an estate where reasonable financial provisions has not been made for them.

Who is eligible to bring a claim?

The categories of applicant who can apply include a surviving spouse/ civil partner or a cohabitee who lived with the deceased for more than two years immediately before their death.

Former spouses/civil partners are potentially eligible to bring a claim, provided they have not remarried, although where a couple have divorced, any financial settlement on divorce may exclude a future 1975 Act claim and this would need to be considered.

Children are eligible to claim, as is someone treated as a child by the deceased, for example, a step-child. This extends to adult children in principle, and although such claims can be hard to pursue successfully, it is always worth seeking advice at an early stage.

A final category of applicant is a person who can show that they were being maintained by the deceased, that is, that they were in some way dependant on the deceased.

If you fall within one of these categories, then it is worth taking advice to see whether a claim can be made.

What will happen?

The court will consider whether the will as drafted, or the intestacy rules, makes reasonable financial provision and if it is decided that reasonable financial provision has not been made, the court will go on to consider what provision should be made for the applicant.

For a surviving spouse or civil partner, reasonable financial provision is more wide ranging, whereas for all other categories of applicant, provision is limited to what is required for that person's maintenance. Maintenance can include a home to live in in some circumstances.

What does the court consider?

In deciding what provision, if any, to award, the court considers a range of factors including the financial needs and resources of the applicant (as well as other beneficiaries of the estate), any physical or mental health problems of the applicant, the size of the estate and any obligations which the deceased had towards the applicant. The court also has the ability to consider any other factor which it considers relevant in the specific circumstances of the case.

It is important to bear in mind that the aim of the 1975 Act is to consider a person's needs and not to alter the disposition of an estate just because the provisions of a will are considered to be unfair. However, it is always worth seeking advice in these circumstances to see what options are available.

Is there a time limit to bring a claim?

There is a strict time limit of six months from the date of the grant of probate in which to bring a claim and it is therefore vital to take advice as soon as possible.

For help and advice about bringing a claim, please contact Wards Solicitors' Contentious Trusts and Probate team.

Wards solicitors is one of the few South West law firms to have a dedicated team of specialists in resolving disputes concerning Wills, estates and family trusts and our lawyers are members of the Association of Contentious Trusts & Probate Specialists (ACTAPS).

The team is praised by the independent Legal 500 Guide for 2020 for its excellent track record in dealing with high-value disputes over Wills, Trusts and Probate. It is also commended for its handling of cross-jurisdictional issues and assessing the merits of validity of Will claims and complex trust disputes.