This is governed by the Inheritance (Provision for Family and Dependants) Act 1975 (refer to http://www.legislation.gov.uk/ukpga/1975/63 for details). A claim can be brought if the potential claimant is amongst the type described by section 1 of that Act; in general the wife, husband, long term partner or child of the deceased (or person treated as a child of the deceased or maintained by the deceased prior to death).
Section 3 describes the factors taken into account by the court in determining whether there has been “reasonable financial provision”.
Tips in relation to no or insufficient inheritance:
- the claim cannot be brought before the death of the will maker;
- however, if before his or her death you believe such a claim might have to be brought, you should ensure that you retain papers such as letters and other documents (including those relating to your financial state and those of any likely beneficiaries) which could be of assistance;
- the “Caveat” described above is not appropriate in relation to such a claim and it’s use can lead to costs penalties and in more extreme circumstances to the failure of the claim;
- proceedings must be issued within 6 months of the date probate was granted (although now you don’t have to wait for the Grant of Probate to be able to issue your claim);
- proceedings can be issued after the 6 month period has expired but you must have leave of the court and that may be difficult to obtain;
- the nature of the proceedings employed in this type of case and the risk of the estate being sold and dispersed before a claim proceeds means that it is essential for you to obtain the assistance of a suitable solicitor at the earliest opportunity.
Case Study 1
It is possible for a claim to be brought by an adult child even though he or she wasn’t dependent on the deceased and hadn’t been dependent for many years. In this case we acted for an adult child who although in his 50’s, had been unable to work for a considerable period of time because he was disabled. This had seriously impacted on his finances and he and his wife were considerably in debt. There was a related claim against the legal validity of the Will which was “home-made” by his sister. The claim was settled at a mediation with our client receiving one third of the estate to be placed into a discretionary trust to preserve his means-tested benefits.
Case Study 2
A better and far more common claim for insufficient inheritance in this type of inheritance dispute is by a disappointed spouse (husband and wife). The courts are far more generous in these circumstances judging the merits of the provision by the will by what the claimant ought to have received by divorce.
One such claim we successfully concluded on behalf of a client involved a farm which she had worked on with her second husband. She was his second wife and it was alleged that this farm had passed down the generations and should remain in his family (he had children by an earlier relationship). It was aggressively fought and concluded shortly before the trial with a settlement whereby our client received over 40% of the estate plus her costs. As a result she was able to move away from the farm, purchase her own house and enjoy an income on which to live independently whereas she had previously been tied to it with a life interest only.
CLIENT COMMENT – “You were always extremely approachable, reliable and flexible……..one would be hard pushed to find such a service anywhere else, and all credit to you for that”
It’s good to receive a bit of good news and thank you for everything.Garry O