“It’s my money, I can leave it to whoever I like”. Well, not necessarily. The UK courts do have the power to make Orders which interfere with the effect of a Will, or the effect of the intestacy laws where there is no Will where a qualifying Applicant can show that the deceased has failed to make reasonable financial provision for them. This is limited to ordering the provision that is reasonably necessary for the maintenance of the Applicant. Where the Applicant is a surviving spouse or civil partner of the deceased, they can potentially claim a higher level of maintenance.
Who can make a claim under the Inheritance Act 1975?
The following can bring a claim under the Act:-
- The spouse or civil partner of the deceased.
- The former spouse or civil partner of the deceased (as long as that person has not re-married/entered into a subsequent civil partnership).
- A person who, for the two years prior to the death, was living with the deceased as if they were a spouse or a civil partner.
- A child of the deceased (including an adult child).
- A person who was treated as a child of the family by the deceased.
- Any other person who was being maintained, wholly or partly, by the deceased immediately prior to their death.
How is a claim pursued?
Anyone who thinks that they might be entitled to pursue a claim under the Act needs to take advice early. A claim has to be issued at court within six months of the date of a Grant of Probate or Grant of Letters of Administration being taken out. After that time, it is too late, save for exceptional circumstances. It is vitally important therefore that you seek legal advice at an early stage.
What information will I need to provide to my solicitor?
At an early stage, an Applicant will need to provide full disclosure of their financial needs and resources. This includes full information in relation to income and outgoings as well as assets and liabilities. Although you may well feel uncomfortable in having to provide this information, it is a requirement for a claim such as this. Without this, it is not possible to evidence the fact that reasonable provision has not been made for the Applicant.
What factors will the court take into account in deciding a claim?
There is a list of factors which the court must take into account when dealing with claims such as this. The financial needs and resources of the Applicant will always be key, both now and in the foreseeable future. The size and nature of the net Estate of the deceased is also likely to be a key factor. The court also have regard to any obligations and responsibilities which the deceased had towards an Applicant for their provision.
What award can the court make?
The court has far-reaching powers to deal with the assets of the Estate. For example, it can order that property is sold or transferred to satisfy a claim. The overriding principle however is that, unless they are a surviving spouse or civil partner of the deceased, any award will be limited to what is required for the Applicant’s maintenance.
Can we help?
If you believe that you might be entitled to pursue a claim against an Estate then we will be happy to have a discussion with you, free of charge and without obligation. Similarly, if you are facing a potential claim against an Estate, we can advise you on your position. In the first instance, please contact Partner, John Burnett who will help make your position clear – John can be contacted on 01484 508 683 or at John.Burnett@isonharrison.co.uk.