By Claire Speed
It is surprisingly common for individuals to make a Will that fails to make adequate financial provision for their surviving spouse / partner, or family members or dependants. When this occurs a person often has no alternative but to make a claim against an estate to ensure that they receive the provision they deserve.
These cases are made under the Inheritance (Provision for Family and Dependants) Act 1975.
Who can make a claim?
A claim can potentially be made by the deceased’s:
- Spouse / Civil Partner
- Partner living with the deceased for at least 2 years
- Divorced Spouse (in limited circumstances)
- Person treated as a child of the deceased
- Person being ‘maintained’ by the deceased immediately prior to their death
What can be claimed?
If a claim is established the court has the power to make a wide range of orders against the estate such as a lump sum, trust or periodical payments. A successful claimant is entitled from the estate to either:
- Such reasonable financial provision as is necessary for maintenance, or
- Spouse / Civil partner – reasonable financial provision
Factors taken into account
If no reasonable financial provision has been made the court will consider the following factors in deciding how to exercise their powers:
- Financial resources and needs of the claimant and other beneficiaries
- Deceased moral obligation
- Size and nature of the estate
- Capacity of the claimant
- Claimant’s conduct
- Duration of the marriage
- Education requirements
There is a 6-month time limit to bring an Inheritance Act claim form the date of the grant of probate. This can the extended in exceptional circumstances.
We are highly experienced in bringing and defending Inheritance Act claims and would be happy to advise you on your prospects of succeeding, the potential pitfalls and costs implications.