Suffering a bereavement of a close family member is a devasting time. This difficult period can however be made all the harder to know that your loved one made a will and chose not to leave you anything in that will.
If you find yourself in this situation it may be possible to make a claim against the estate under the Inheritance (Provision for Family & Dependants) Act 1975.
Who can make a claim?
The Act sets out the categories of applicants who are able to make a claim against an estate where they have either not been provided for at all in a will or where the provision in the will is deemed not enough:
1. Spouses and civil partners of the deceased
2. A child of the deceased (both adults and minors) including people who had been treated as a child of family by the deceased
3. A person who was being maintained by the deceased prior to their death
4. A person who had been cohabiting with the deceased during the two-year period prior to their death as if they were a married couple or civil partners
What can be claimed?
The Act states that applicants may make a claim against the estate for ‘reasonable financial provision’. This differs depending on who is making the claim.
For spouses and civil partners, the claim is a wider one which means they may claim “such financial provision as it would be reasonable in all the circumstances of the case for a husband or wife or civil partner to receive, whether or not that provision is required for his or her maintenance”.
For everyone else, the test is “such financial provision as it would be reasonable in all the circumstances of the case for the applicant to receive for his maintenance”. Therefore, the amount to be claimed is very much more a needs based application.
What factors does the court look at?
Whilst the court will consider the deceased’s persons will and any letter of wishes made by the deceased which accompanies the will in which the deceased explains why they have not made any provision for a close relation or dependant, this is only one factor the court will take into account. Even if the deceased stated very strong reasons why they have excluded someone from their will the court will have to consider, where relevant, the following factors under section 3 of the Act:
(a) the financial resources and financial needs which the applicant has or is likely to have in the foreseeable future;
(b) the financial resources and financial needs which any other applicant for an order under section 2 of this Act has or is likely to have in the foreseeable future;
(c) 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;
(d) any obligations and responsibilities which the deceased had towards any applicant for an order under the said section 2 or towards any beneficiary of the estate of the deceased;
(e) the size and nature of the net estate of the deceased;
(f) any physical or mental disability of any applicant for an order under the said section 2 or any beneficiary of the estate of the deceased;
(g) 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.
Where a claim is being brought by a spouse or civil partner or cohabiting couple the court will also consider the age of the applicant and the duration of the marriage/partnership/relationship as well as the contribution which the applicant made to the welfare of the family of the deceased.
As can be seen, it is very much a balancing act which the court must make when considering the needs of the applicant and that of the other beneficiaries. The large the estate the easier it is for the court to strike a balance between all the competing interests in the estate.
