In recent years the number of people contesting wills has increased dramatically. One reason is that it is common for families today to be structured in a less traditional way. Second marriages are more common than they were in previous generations and it is common to live together without getting married. 

The law has tried to keep up with these changes. The Legitimacy Act 1976 broadened the definition of “children” to include children born outside of marriage and the Civil Partnership Act 2004 extended the rights of spouses to same sex couples who have entered into a civil partnership. 

However, the rules of intestacy, which set out who will receive your estate if you die without a will, are still inappropriate for many people. For example, if you die without a will:

• Your unmarried partner will receive nothing from your estate
• If you have a spouse and children, your spouse will only receive part of your estate
• Your relatives will receive your estate even if you are estranged from them.

The Inheritance (Provision for Family and Dependants) Act 1975 

The Inheritance (Provision for Family and Dependants) Act 1975 allows certain people to make a claim against someone’s estate if they feel they have not been reasonably provided for. This may be as a result of the deceased not having a will, not having an up to date will or simply not including the person in their will. If you are the deceased person’s spouse or civil partner, former spouse or civil partner, cohabitee (for more than two years), child, someone treated as a child, or someone else who was financially dependent on the deceased, you are able to bring a claim.

Under the Act, if you were the deceased’s spouse or civil partner, the court can make an order that you receive financial provision from the estate that would be reasonable in all the circumstances, whether or not the provision is required for your maintenance. If you fall into one of the other categories of claimant you can only claim for what is reasonable for your maintenance in all the circumstances. 

For example, if you lived with the deceased for two years before he died, you may apply for reasonable provision for your maintenance. One way a court might address this is to look at the shortfall in your income to allow you a reasonable standard of living. This could mean a monthly payment was awarded by the court, or a lump sum instead of a monthly payment, calculated by reference to your life expectancy.

The court will look at a claimant’s financial resources and needs, as well as the financial resources and needs of the beneficiaries of the estate and any other claimants. It will also look at the deceased’s obligations and responsibilities towards the claimant, the beneficiaries and any other claimants. It will look at the size and nature of the estate. For example, if it is a very large estate it might be easier to provide for everyone. It will look at any physical or mental disability the claimant may have, and likewise the beneficiaries and any other claimants.

In all cases it will also look at any other matters, including conduct, which it feels are relevant.

There are additional matters the court will take into account for different types of applicants - for example if the claimant is the deceased’s spouse or civil partner the court will take into account the length of the marriage or civil partnership.

How do I make a claim?

A claim under the Act is made under Part 8 of the Civil Procedure Rules. It usually has to be made within six months of a grant of probate being issued. You are strongly advised to seek legal advice from a member of the Association of Contentious Trust and Probate Specialists (ACTAPS). They will be able to advise you on the likely success of your claim before you decide to proceed. At Birkett Long we have ACTAPS members who can help.