By Sangita Manek, partner in the Dispute Resolution team at Blaser Mills Law
A general principle under English law is that a person has ‘testamentary freedom’ to leave their property, assets and other wealth to whomever they please upon their death, and this can lead to instances where people feel that, for whatever reason, they have wrongly been left out of their loved one’s Will.
The Inheritance (Provision for Family and Dependants) Act 1975 was first introduced to deal with circumstances in which an individual has not been provided for following a person’s death when they feel they should have been.
It sets out a certain category of people – known as “applicants” – who can apply to a court to make provision for them if they believe a deceased person has failed to adequately do so.
But what grounds must a person meet to bring a claim under the Inheritance Act, who is eligible to do so, and which factors is a court likely to consider?
The basis for bringing a claim
To bring a successful claim against the estate of the deceased applicants are only required to meet one ground, and that is to provide proof that reasonable financial provision has not been made.
It can be difficult to ascertain what might constitute ‘reasonable financial provision’ given that each applicant has unique circumstances and relations to the deceased.
Therefore, to determine each claim that is brought before it, the court must consider a variety of factors and, though these will not be relevant to every class of applicant, there are several common considerations they are likely to make. These are:
- An applicant’s future financial needs and resources, including earning capacity.
- The future financial needs and resources of any other applicant, including earning capacity.
- The future financial needs and resources of any beneficiary, including earning capacity.
- The deceased’s obligations and responsibilities towards any applicant or beneficiary.
- The size and nature of the deceased’s net estate.
- The physical and or/mental condition of the applicant or any beneficiary.
- Any other matter the court considers relevant, including the conduct of any party.
Who can make a claim?
According to the Inheritance Act, there are several different categories of people who are entitled to bring a claim. These include:
- The deceased’s current or former spouse or civil partner, on the condition that they have not remarried or formed a new civil partnership.
- The deceased’s current or former spouse. The court will look at the length and duration of the marriage, the applicant’s age and their contribution to the care and welfare of the family and home.
- A person who has lived in the same household as the husband, wife or civil partner of the deceased for a whole two years prior to the death.
- Any child of the deceased, as well as anyone who is treated as a child of the family by the deceased due to a marriage or civil partnership. If an applicant is a child, the court will take into account whether the deceased maintained the child – and, if so, how long for – the basis and extent to which they provided maintenance, and the extent to which the deceased was responsible for the maintenance of the child. It is worth noting a person can still make a claim for reasonable financial provision once they are an adult and/or married, as has been
seen in a number of recent cases – such as Ilott v Mitson ].
- Lastly, any other person who was being maintained – either wholly or partly – by the deceased immediately before their death. In this case, a court would look at the length of time the deceased maintained the applicant for, the basis for doing so, the extent of the contribution made by way of maintenance, and the extent to which they assumed responsibility for the maintenance of the applicant.
Other considerations for the court
Another important consideration a court will make when an applicant brings a claim is the deceased’s reasons for attributing their wealth and assets in the way set out by their Will.
The exception to this is if it is clear the deceased had voluntarily deprived themselves of assets to defeat a potential claim following their death. In this case, for the court to take notice, the deceased would need to have given a clear reason for excluding a person from their Will or limiting their provision, and even then the court will only consider this in the context of all the other circumstances of the case.
If the court decides the deceased’s argument for excluding someone is insufficient, it may rule that the Will is ‘unreasonable’ and grant awards to the applicant.
If you feel you have been unfairly left out of a deceased person’s Will, it is crucial that you see legal advice immediately.
This is because there is a strict time limit of six months from the date of the grant of representation or probate – the document that gives an executor the power to start administering a Will – within which you can bring a claim under the Inheritance Act.
Alternatively, you might be thinking about making a Will and want to ensure it is not challenged by disgruntled family members who are unhappy with the decisions you have taken. In this instance, you should seek proper advice before drafting your Will to ensure it takes any potential claims that may be made against your estate into account.
Of course, most people will want to avoid disputes surrounding their Will following their death, so any action you can take while you are still alive will be to the benefit of everyone involved.
Despite this, cases where people feel they have been wrongly left with little or no provision are inevitable, and it is important for these individuals to know that support is close at hand.
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