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Inheritance Act claims

Do you need expert legal advice after being left out of a Will?

If you have been left out of the Will of a loved-one, or if someone you were dependent on has died leaving you struggling financially, you may be able to bring a claim under The Inheritance (Provision for Family and Dependants) Act 1975 (the Inheritance Act). A strict time limit applies to Inheritance Act claims, so speak to one of our experts today to see how we can help.

Unlike in many countries (for example Scotland and France), England and Wales have no law of forced heirship, so a testator – someone making a Will – is able to leave their estate to anyone they would like, meaning they are not under any obligations to make gifts to certain people, like a spouse, civil partner, or other family members. However, the Inheritance Act 1975 offers protection for certain family members, and anyone left in financial difficulty as a result the Will after the testator’s death.

A successful Inheritance Act claim will result in the person bringing the claim being provided for out of the estate. Usually, such financial provision is awarded as a lump sum payment, an allowance from a trust fund, or permission to live in a property owned by the deceased’s estate.

Who can bring an inheritance act claim?

Who can bring an Inheritance Act claim?

An Inheritance Act claim can be brought by anyone who falls into the following categories:

  • The deceased’s spouse or civil partner;
  • The deceased’s former spouse or civil partner, as long as they have not re-married;
  • The deceased’s children, step-children, adopted children or any other person who was treated as their child, including adult children;

or any person who does not fall into one of these categories but who was financially dependent or was being financially maintained by the deceased before their death, even if they are not family members.

Commonly, Inheritance Act claims are brought where an adult child or a step child has been left out of a Will, or by civil partners in the case of unmarried couples. We have also acted on a number of claims where a young child has been left out of the Will because the testator did not get round to changing their Will to include the young child before their death.

Anyone who is eligible can bring an Inheritance Act claim if, due to the deceased’s Will or the rules of intestacy, they believe they have not received reasonable financial provision from the estate.

Importantly, in certain circumstances a person can bring a claim under the Inheritance Act even if they have been given provision under the Will; if such financial provision under the Will is not considered to be reasonable provision, they might have a claim.

What is reasonable financial provision?

What is reasonable financial provision?

Anyone eligible to make a claim under the Inheritance Act is entitled to claim reasonable financial provision from the estate of the deceased. What constitutes ‘reasonable’ is not an exact science, but generally the Court will award what it considers to be reasonable in all the particular circumstances of the case before it, which means taking into account all of the relevant factors, including:

  • the size and nature of the deceased’s net estate;
  • the claimant’s financial needs both before and since the deceased’s death;
  • the claimant’s financial resources;
  • the claimant’s earning potential;
  • what financial support the claimant is likely to need for the foreseeable future;
  • the financial needs of any other applicant in the claim, both now and for the foreseeable future;
  • any physical or mental disability of the claimant and any other applicant in the claim;
  • the interests of other parties listed in the Will, any spouse or civil partner of the deceased, and any family members or anyone financially dependent on the deceased who may also be entitled to make claims for provision out of the estate.

The provision made by the Court in Inheritance Act claims will vary on a case-by-case basis, and will often also depend on the nature of claimant’s relationship to the deceased. Typically, the highest awards are made to claimants who were married to or in a civil partnership with the deceased because – unlike other categories of claimant – the Court does not have to limit the award to what is required for the maintenance of that person.

The Court will also have regard to the deceased’s wishes. For example if they wrote in their Will or explained in a letter of wishes why they did not want a person to benefit from their estate, the Court may take this into account.

what will the courts decide to award?

What will the Court decide to award?

If an Inheritance Act claim for reasonable financial provision succeeds, once the Court has decided what provision it would be reasonable to award the claimant in all the circumstances, it has a range of options to ensure the financial needs are met, including:

  • a lump sum payment out of the estate;
  • the creation of a trust;
  • regular payments to a person to support living expenses;
  • transferring property;
  • permitting someone to live in a property belonging to the deceased for a set period of time, known as a life interest trust.

This will be decided at the conclusion of a claim, and will be recorded in a Court order.

What is a life interest trust?

What is life interest trust?

The Court might decide, having regard to all the circumstances, to make reasonable financial provision for someone in an Inheritance Act claim by allowing them to live in a property owned by the deceased without charge for a set period of time, often for the rest of their lives.

This is often seen where the claimant – for example the surviving spouse, or unmarried partner – was living with the deceased but is not able to afford to live on their own after the deceased died, or where the estate includes a rental property which generates a monthly income which could then be paid to a child, spouse or civil partner to help with their financial needs.

The trust will be managed by a third party, often the executor under the Will of the deceased, or an independent professional, but the beneficiary will have obligations under the trust such as covering the maintenance and insurance costs related to the property until the trust ends.

How do I make an inheritance act claim?

How do I make an Inheritance Act claim?

The Court process should be a last resort, so we will always try to resolve Inheritance Act claims without resorting to Court proceedings. To do that, we try to engage in correspondence with the executors and the other beneficiaries to see if everyone connected to the estate can come to an agreement via alternative dispute resolution, such as mediation. This is almost always the quickest and most cost-effective way to resolve claims, including Inheritance Act claims.

Where an agreement cannot be reached, a High Court claim will need to be issued and a trial will need to take place so the Court can decide whether to make an award out of the estate, and if so, what award to make. Such a claim under the Inheritance Act will require claimants to submit witness statements containing financial information to demonstrate to the Court what financial resources they have and what financial provision they are going to require from the estate of the deceased.

What are the time limits to make a claim?

What are the time limits to make a claim?

Under Section 4, Inheritance Act claims must be issued within six months of probate being granted:

An application for an order under section 2 of this Act shall not, except with the permission of the court, be made after the end of the period of six months from the date on which representation with respect to the estate of the deceased is first taken out (but nothing prevents the making of an application before such representation is first taken out).

Section 4, Inheritance Act 1975

Beyond the six months time limit the Court’s permission is needed for claims to proceed, and the Court will only give its permission in certain, limited circumstances. Therefore, it is important to act quickly and seek legal advice if you think you may have a claim under the Inheritance Act to avoid the potential consequences of failing to bring a claim within the time limit.

What are the intestacy rules?

What are the intestacy rules?

If a person dies without leaving a valid Will, there are rules which decide how their assets are distributed after their death. We have put together this guide which explains how it works.

How can Darwin Gray help?

We have a wealth of experience acting for clients in a range of Inheritance Act claims. We tailor a strategy for each client and for each claim, and our empathetic approach helps clients navigate these complex and emotive claims as swiftly and stress-free as possible.

If you think you are eligible to claim under the Inheritance Act, you should seek legal advice as early as possible. We offer a free consultation so please contact us on 02920 829 100, visit our contact page, or fill out the enquiry form on this page, to speak to one of our specialists today.

To speak to one of our experts today, please contact us on 02920 829 100 or by using our Contact Us form for a free initial chat to see how we can help.

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