Sometimes, upon the death of a loved one, people find that they have not been left anything in that person’s Will. Whilst this can be upsetting, and even unjust, there are only limited circumstances in which the validity of a Will can be challenged (FAQs about Will challenges can be viewed here).
If a Will challenge is not likely to succeed, then there is another possible way for specified people to seek provision from someone’s estate. The Inheritance (Provision for Family and Dependants) Act 1975 (Inheritance Act) gives people the chance to seek sums of money or even property settlements from estates, even if the deceased person has not provided for the claimant in their Will.
Challenging a Will – who can bring a claim
This is usually only available to people who can demonstrate financial need for provision and a select list of people may apply, and they are:
- The deceased’s surviving spouse or civil partner;
- A child of the deceased;
- Anyone treated as “a child of the family” by the deceased;
- Someone being directly maintained by the deceased prior to his/her death; or
- Anyone who has cohabited with the deceased for two years or more immediately prior to his/her death.
It is possible for two or more people to bring Inheritance Act claims at the same time.
Awards
Even if you are eligible to bring an Inheritance Act claim, whether or not the Court will award you anything depends on a number of factors, which include:
- Your financial needs;
- The financial needs of other beneficiaries (and any other potential claimants) and how they will be impacted;
- Whether or not any of the beneficiaries suffer from disabilities and have enhanced levels of need;
- The size of the deceased’s estate; and
- Any other relevant factor.
Generally, the surviving spouse or civil partner can expect a larger award if their claim is successful and would not adversely affect other beneficiaries. There is precedent for the Trial Judge to consider what the position might have been had the parties divorced, and to use this as a starting point. For other claimants, including the deceased’s children, awards tend to be quite modest unless they can demonstrate a high degree of financial need, or disability.
Sometimes, the deceased might have had reason not to include someone in their Will. Family fallouts, disapproval of someone’s behaviour or actions or a commitment to charitable donations might be the underlying motivation and the Will file should normally record details of this. These issues are taken into account and Judges will lay some weight on the intentions of the deceased.
However, it has been established in cases such as Ilott v The Blue Cross & Others [2017] UKSC 17 that being estranged from relatives, or falling out with them is not necessarily a barrier to bringing an Inheritance Act claim. It might be a factor in the Court’s level of award but it seems to be widely acknowledged that there is a “moral obligation” to provide for one’s spouse and children, even if relations between them have not been good.
Recovery of costs and time limits
If the estate is very small, however, it can sometimes be uneconomical to bring a claim under the Inheritance Act as legal costs can escalate fairly rapidly, and recovery of those costs is not guaranteed. Any individual seeking to bring an Inheritance Act claim must do so within six months of the grant of probate being issued, and proceedings cannot be started any later than that date otherwise they will be time-barred under the Limitation Act 1980.
How we can help
If you have any questions regarding the subjects discussed in this article, please contact a member of our expert Dispute Resolution team in Derby, Leicester or Nottingham on 0800 024 1976 or via our online form.
Contact us