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How can I make a claim under the Inheritance Act?

View profile for Rachel Leech
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How can I make a claim under the Inheritance Act?

People often consider a claim under the Inheritance (Provision for Family and Dependants) Act 1975 when they receive nothing, or not as much as they expected, from a loved one’s estate.

What is a claim under the Inheritance (Provision for Family and Dependants) Act 1975?

The Inheritance (Provision for Family and Dependants) Act 1975 enables certain people to make a claim against the estate for financial provision if the will/rules of intestacy either do not provide for them at all, or do not provide enough provision. The people who can make a claim are:

  • Spouse or civil partner
  • Ex-spouse or civil partner
  • Children, including adult children
  •  Someone treated as a child by the deceased
  •  Someone maintained (either wholly or partially) by the deceased immediately before their death

When must I bring a claim under Inheritance (Provision for Family and Dependants) Act 1975?

These claims must be made within 6 months of the grant of probate being issued. It is usually possible to start a claim before, and claims can be made after the 6 months with permission from the court.

What will I get from a claim under the Inheritance (Provision for Family and Dependants) Act 1975?

The court has the power to order a number of different things, such as lump sum payments or transfer of a property.

How much the court will award depends on the factors of the individual case. For anyone except spouses, the amount they receive will be limited to what they need for their maintenance.

When considering whether the deceased’s estate makes reasonable financial provision for the person making the claim, and if not, how much they should receive, the court considers:

  • The beneficiaries’ financial needs and resources
  • Your financial needs and resources, if you want to put forward a ‘needs based’ defence
  • The size and nature of the estate
  • The deceased’s obligations and responsibilities towards the beneficiaries and the person making the claim
  •  Any physical or mental disabilities that any of the beneficiaries or people making the clam may have
  • Any other matter, including conduct, which may be relevant

When considering the financial resources of the person making the claim, the court will also consider their earning capacity and their financial obligations and responsibilities.

There are further factors the court considers. For example, for spouses, the court will look at spouse’s age, the length of the relationship and the contribution the spouse made to the welfare of the family such as caring for children. The starting point for a spouse is what they would have received if the relationship had ended in divorce. However, this is only a starting point which can be deviated from.

For a child or someone treated by the deceased as a child, the court will look at the manner in which the child was, or might have expected to be, educated.

For people treated by the deceased as a child, the court will also consider whether the person making the claim was maintained by the deceased and if so, for how long and on what basis). The court will also look at whether the deceased assumed responsibility for their maintenance, whether the deceased maintained them knowing that they were not their own child and the liability of anyone to maintain the person making a claim.

For claims made by people being maintained by the deceased, the court will consider for how long, and on what basis, were they maintained and whether (and if so, to what extent) the deceased has assumed responsibility for their maintenance.

How do I make a claim?

The first thing you should do is find out if there is a grant of probate/letters of administration, and if so, when it was issued. This is because claims must be made within 6 months of the grant being issued. Claims can be made afterwards, but the court’s permission is needed.

Next you should collate information relating to the grounds the court will consider, as set out above. Full details of your financial needs and resources will be needed.  We have a crib sheet we ask people to complete detailing their income, outgoings, assets and debts. It is not unusual for bank statements and other financial evidence to be requested.

Once you have this information, you should then consult an expert who deals with claims under the Inheritance (Provision for Family and Dependants) Act 1975. This is so you can receive specialist advice on the prospects of you being successful with your claim.

If you have good prospects of success, the first step will usually be to write a letter of claim to the beneficiaries setting out the legal basis of your claim. There is usually some correspondence regarding the legal basis of the claim and offers can be made. If no agreement can be reached, court proceedings may become necessary for the court to decide whether you should receive something from the deceased’s estate. However, cases rarely go to a court trial as matters are usually settled either through correspondence or at a mediation.

If you would like to discuss whether you would have a successful claim under the Inheritance (Provision for Family and Dependants) Act 1975, please contact our specialist Contested Probate team. We have vast experience of dealing with these claims so can provide you with expert advice. 

 

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