“It’s just not fair” – Inheritance claims

In England and Wales we have what is called ‘testamentary freedom’. What this means is that, when you die, you can leave your assets to whoever you wish, whether that be to your children or to a cat charity. However, this freedom can sometimes cause problems. A disgruntled, hopeful beneficiary might feel that they have not been left enough, or they might have been excluded from any inheritance entirely.

In this blog, Roanna Cooling, a solicitor in our Litigation department, discusses your legal right to bring a claim for reasonable financial provision against a deceased’s estate.

Step 1: Are you entitled to bring a claim?

To bring a claim, you are reliant upon the Inheritance (Provision for Family and Dependents) Act 1975 (the 1975 Act).

Under the 1975 Act, you must be an eligible claimant. This ensures that when someone dies, there is a limit on who can actually bring a claim against their estate and that their estate is not going to be faced with a queue of random potential claimants.

The 1975 Act details who may be entitled to bring a claim. They are:

1. The spouse or civil partner of the deceased.
2. A former spouse or civil partner of the deceased (provided they have not re-married or entered a new civil partnership).
3. Someone who was, for two years before the deceased died, living as a spouse/civil partner.
4. A child of the deceased.
5. Someone who was treated as a child of the deceased.
6. Any other person who was maintained, either wholly or partly, by the deceased immediately before their death.

If you do not fall into any of the categories in a) – f) above, then you are unable to bring a claim under the 1975 Act.

Step 2: What can you claim?

The 1975 Act says that a claim may only be brought for reasonable financial provision. What this means depends on your status, and what category of eligible claimant you fall into.

Spouse/Civil Partner: If you were, at the time of the deceased’s death, a current spouse or civil partner of the deceased then you are entitled to claim financial provision that is reasonable in all the circumstances. There is no requirement that this be for your maintenance, and you are entitled to receive a financial settlement that you would have received had the relationship ended in divorce, and not death.  

Any other eligible claimant: Contrast the position above with that of any other claimant. Anyone other than a spouse/civil partner is only entitled to claim financial provision that is reasonable in all the circumstances for their maintenance.

So, the key difference here is that if you are not a spouse/civil partner, then you are going to have to prove that what you inherited (if anything) was insufficient to maintain you financially in the future. This is of course a more onerous test than a spouse or civil partner simply having to prove that the inheritance they received was unreasonable in all the circumstances.

Step 3: What factors will the Court consider?

When deciding whether to award a claimant reasonable financial provision the Court will consider the following factors:

1. the financial resources and financial needs which the claimant has or is likely to have in the foreseeable future;
2. the financial resources and financial needs that any other eligible claimant has or is likely to have in the foreseeable future;
3. the financial resources and financial needs which any beneficiary of the estate of the deceased has or is likely to have in the foreseeable future;
4. any obligations and responsibilities which the deceased had towards the claimant or any beneficiary of the estate of the deceased;
5. the size and nature of the net estate of the deceased;
6. any physical or mental disability of the claimant or any beneficiary of the estate of the deceased;
7. any other matter, including the conduct of the applicant or any other person, which in the circumstances of the case the court may consider relevant.

Will vs Intestacy rules

A 1975 Act claim may be brought against any Estate. It does not matter whether there is a Will or whether one is dealing with an intestacy situation.

Time limits and next steps

To bring a claim under the 1975 Act there is a statutory limitation period of 6 months running from the date any Grant of Probate, or Grant of Letters of Administration, is obtained. It is therefore imperative that you act fast as soon as you consider that you may have a claim.

If you have any queries in relation to the issues raised in this blog, please contact Roanna Cooling, litigation and inheritance claims specialist at Hughes Paddison Solicitors, at rco@hughes-paddison.co.uk or on 01242 574244.