It is a long-standing and fundamental principle of the law of England and Wales that a testator is free, by making a Will, to leave his or her estate in the hands of whomever they wish. The Inheritance (Provision for Family and Dependants) Act 1975 (the Inheritance Act) provides an exception to this rule and a legal route for those who feel they have not been adequately provided for by a deceased’s Will to make a claim against the estate.
A Will can be challenged on many grounds including lack of valid execution; the testator’s lack of capacity; lack of knowledge and approval; undue influence; and fraud/forgery. Claims under the Inheritance Act are made against otherwise valid Wills and are based on the Will not making adequate provision for certain categories of individuals (referred to below).
The Inheritance Act outlines a number of conditions that need to be met before a claim can be made, in order to satisfy the court that the claim is valid. These include:
- the deceased was living in England or Wales at the time of their death
- the applicant is one of a restricted category of people who can bring these claims, including: spouses (and civil partners), ex-spouses (and ex-civil partners), cohabitees of over two years standing, children (including adult children) of the deceased, persons treated as a child of the family of the deceased by reference to a marriage or civil partnership, and any other persons who was being maintained in full or in part by the deceased at the date of their death; and
- any application must be made within 6 months of a Grant of Probate or Letters of Administration being issued by the Probate Registry.
If these conditions are met, then the court must make a decision regarding whether or not ‘reasonable financial provision’ has already been made for the applicant in the Will.
Factors the court will consider
When deciding whether to make an award, the court must have regard to a range of certain factors. These include, but are not limited to:
- the financial resources and needs of the claimant;
- the size of the estate;
- the financial needs and resources of other beneficiaries; and
- any other matter which the court considers relevant in the circumstances.
Orders of the Court
Following a successful claim under the Inheritance Act, the court can decide upon a number of orders, including:
- periodical payments or a ‘maintenance’ order;
- an order for a lump sum payment;
- sale or transfer of property order;
- an order of redistributing or acquiring property;
- variation of a prenuptial or post-nuptial settlement if the deceased was married.
If a claim is unsuccessful then the estate will be administered in accordance with the Will.
When considering a claim under the Inheritance Act, it is important that you seek the specialist advice of a solicitor and that you do so quickly. This is particularly the case as any claims under the Inheritance Act must be made within six months of a Grant of Probate or Grant of Letters of Administration were issued.
If you are considering making a claim under the Inheritance Act then you need the help of Pannone Corporate. We have an experienced team who act for claimants seeking to bring Inheritance Act claims, executors who face claims and also beneficiaries under Wills who may wish to contest a claim under the Act. For further information, please call our expert team of Will dispute solicitors on 0800 131 3355 or contact them via our online form.