More information about claims under the Inheritance (Provision for Family and Dependants) Act 1975
As mentioned already, whereas if you contest a Will’s validity you are not accepting it as a legally valid document, a claim under the Inheritance (Provision for Family and Dependants) Act 1975 is only made after a Will has been accepted as valid by the Court Probate Service and can only in fact be made once a Grant of Probate has been obtained. In effect, it is a claim against the estate for financial provision. It is not a true Will contest claim or will dispute.
A claim under the Inheritance Act is founded against a background of an individual’s right to leave his or her estate as he or she sees fit. In other words each of us has a right to leave our money and assets to any individual, charity or other corporate or legal body. Battersea Dogs Home or a hospital or charity are often chosen and in place of the individuals own children!! The courts will strain to uphold the testator’s last wishes by his Will and as described already, this can mean that claims by adult children of the deceased are much more difficult to sustain.
Special reasons – an adult child really needs to show that there is a “special reason” why their claim should succeed beyond their own failure to earn sufficient for their needs and/or excessive spending beyond their means. Whilst this is denied as a factor in successive Judgments about claims under the Inheritance Act, it is really the easiest way of describing the best claims which are likely to succeed where an adult child of the deceased is the claimant. Typical examples might include adult children who have disabilities preventing them from working or whose work has been interrupted because they are looking after a child with disabilities.
Of Course a child of the deceased under the age of 18 would have a good claim under the Inheritance Act.
Favoured applicants under the Inheritance Act
These include the spouse (ie widow or widower of the deceased);
Unmarried “partners” of the deceased;
Those the deceased maintained prior to his or her death, and as mentioned
Their children under the age of 18
The Spouse is entitled to such provision as he or she would have received if instead of death, there had been a divorce. In general terms the courts will weigh up an individual’s entitlement on divorce by varying a 50:50 split of the assets, taking into account the length of the relation, children and dependants, the accumulation of assets during the relationship and who helped achieve that.
Unmarried “partners” are treated relatively generously as well. The courts will take into account when considering whether the financial provision they have been left is reasonable, their standard of living before the death.
Critical points to consider
There is a six month time limit following the Grant of Probate in which to bring a claim under the Inheritance (Provision for family and Dependants) Act 1975
There has to be a Grant then before a claim can be issued
Whilst this time limit can sometimes be extended, it should be noted the same time limit applied where an application has to be made to bring into the “net estate” assets previously owned jointly but which pass outside of the terms of the Will (eg. a jointly owned house) and that cannot be extended
A claim can be brought where the deceased left no Will (ie died intestate)
If the Claimant under the Inheritance Act dies during the process of claiming (ie before trial), his or her claim ceases and cannot be continued by a relative on behalf of their estate
A claim can only be made against the estate of a person who died whilst domiciled in England and Wales (British citizens who were previously living abroad in say Spain may no longer be classed as domiciled in England and Wales)
Overall, a claim under the Inheritance Act carries with it considerable risks for all the parties – a successful claim is likely to lead to an Order that costs of the dispute be paid by the estate