Inheritance Act claims: what are they?

Ella Harmer, a solicitor in the contentious probate team, answers some frequently asked questions about claims under the Inheritance (Provision for Family and Dependants) Act 1975 (“the Act”).

Can I contest a Will if I haven’t been left anything?

Certain people (including spouses, civil partners, children, cohabitees, and anyone financially maintained by the deceased) can potentially bring a claim under the Act if they have not been reasonably provided for by a will or the rules of intestacy. For a claim to be successful, they must evidence to the court that they satisfy the criteria set out in the Act.

Can I make a claim if there is no Will?

Yes. If there is no will and the intestacy rules do not adequately provide for you, it can be possible to bring a claim, subject to you being able to satisfy the criteria in the Act.

What claim can a spouse/civil partner bring?

If a spouse or civil partner has not been reasonably provided for in a Will or under the intestacy rules, the court will consider what a ‘reasonable’ award would be in all of the circumstances of the case.

The Court will apply a ‘deemed divorce’ test and consider what award a spouse or civil partner would have received if their relationship had been ended by divorce as opposed to death.

Can I claim if I was not married to the Deceased?

If you were living with the Deceased for at least two years before their death then yes, subject to satisfying the criteria within the Act, you may be able to bring a claim if you require provision for your maintenance i.e. if you have a housing or income need.

What claim can an adult child make?

It is possible for an adult child to bring a claim, even if they were not financially dependent upon their parent, but only if they can evidence that reasonable financial provision has not been made for them and that they require provision for their maintenance i.e. if they have a housing or income need.

Do I need to go to court?

Not always. More often than not, it is more beneficial to all parties involved if the claim can be settled before a claim in the court is commenced, or if a court claim is necessary before the claim goes to trial. If a claim can be settled before trial, this will save time, and significant legal costs and often preserves relationships with other parties to the claim.

We will consider and advise on settlement options (including written offers, or mediation) at all relevant stages following an instruction.

What will a court look at?

The Court will consider certain factors which include (amongst others) the size and nature of the estate; the financial needs of the Claimant and any other beneficiaries; and any disability of the claimant or any other beneficiary under the estate.

If the claim is brought by a spouse or civil partner situation, the Court will also consider the length of marriage and any contribution made by the claimant to the welfare of the family.

What award will the Court make?

There are a range of awards that a Court can order. These range from a lump sum, one-off payment, an interest in a property owned by the Deceased (such as the right to live in the property for a certain period), or periodical payments. Individual circumstances will determine which award would best suit the claimant’s needs.

What if I am the executor and want to make a claim?

An executor must remain ‘neutral’ when carrying out their role and must not let their interests conflict with their role. If you are an executor and you are looking to make a claim, it may be necessary for you to renounce your role (which means to ‘give up’ the role), but not always.

If you are an executor and are considering claiming against the estate, you must obtain legal advice as soon as possible and ideally, before carrying out any duties of an executor.

Who will pay the costs of the claim?

The claimant will need to fund the costs of the claim in the first instance. Before we advise anyone to make a claim, we will consider the likelihood of the claim succeeding and we will balance whether the costs of the claim would be justifiable.

If a claim is successful, the ‘losing party’ is usually ordered to pay a certain amount of the winning party’s costs. It is a wide-held misunderstanding that the costs of a losing party are normally met by the estate. There can be serious cost consequences associated with bringing a claim so it is very important to take expert advice from the beginning.

When do I need to make a claim?

If you are considering making a claim, it is important to seek legal advice as soon as possible. This is because claims under the Inheritance Act need to be made within 6 months of the grant of probate being issued.

If you have been left out of a will or have not been sufficiently provided for in a Will or under the intestacy rules, please contact a member of our contentious probate team as soon as possible.