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What are claims under the inheritance (provision for family and dependants) act 1975?

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What are claims under the inheritance (provision for family and dependants) act 1975?

What are claims under the inheritance (provision for family and dependants) act 1975?

Whilst, in contrast to many other jurisdictions which have “forced heirship” rules, having the freedom to leave your estate to whomever you wish is a well-known cornerstone of English and Welsh law; this does have its limits. 

Under the Inheritance Act 1975 where a person domiciled in England and Wales dies, claims can be made against their estate by certain categories of persons on the basis that under the deceased’s will or the intestacy rules, the applicant was not given reasonable financial provision. Any such claims must be issued within six months from the date of the grant of representation to the estate (only in exceptional circumstances will the court extend this).

Who is eligible to bring such a claim?

The surviving parties who are able to make such claims are:

  • The deceased’s spouse or civil partner
  • The deceased’s former spouse or civil partner (so long as not re-married/new civil partnership)
  • Any person who for a period of 2 years immediately prior to the death of the deceased was living with them as their partner
  • Any person who immediately prior to the death of the deceased was being maintained by them (wholly or partly)
  • Anyone who was ever treated by the deceased as though they were the deceased’s child
  • The deceased’s children

The court has extensive powers to make awards in relation to the net estate to give the applicant reasonable financial provision. This includes awarding: an absolute capital sum, income; deferred payments, an amount settled on trust, a variation of an ante-nuptial or post-nuptial settlement (and equivalent settlements relating to civil partnerships), and/or an option to purchase an asset of the estate.

What is “reasonable financial provision”?

There are two standards for what counts as “reasonable financial provision” which differ based on the status of the applicant, these are:

1. If the applicant is the spouse or civil partner of the deceased (or in some cases where only recently divorced/separated), “reasonable financial provision” means such financial provision as would be reasonable in all the circumstances of the case to receive, whether or not that provision is required for the applicant’s maintenance.

2. For any other applicant, “reasonable financial provision” means such financial provision as would be reasonable in all the circumstances of the case for the applicant to receive for their maintenance.

What counts as reasonable in the circumstances, and what is required for maintenance will vary from one case to another and is dependent on the circumstances.

The court when assessing how to exercise its powers takes into account all relevant circumstances including: the financial resources and financial needs which the applicant, any other applicants and any beneficiaries have or are likely to have in the foreseeable future, any obligations and responsibilities which the deceased had towards any applicant and beneficiaries, the size and nature of the estate, the age of the applicant and length of relationship with the deceased, and any contributions made by the applicant to the welfare of the family of the deceased, including any contribution made by looking after the home or caring for the family.

How we can help

Claims and defences to claims will depend on the individual circumstances of each case and can become quite technical and complicated. Our expert Contentious Probate Team have extensive experience in the conduct of such cases, advising on the merits of any claims, the likely size of any awards and the form which any award should take.

Our Contentious Probate Team is part of EMW Wealth. Take a look at the EMW Wealth Brochure here

Get in Touch

If you, a loved one or a close contact require advice in relation to any actual or prospective claims under the Inheritance Act 1975, or want to try and avoid any such issues arising in relation to your own estate, please get in contact with Karen Young.

The information contained in this leaflet is or general information purposes only and is not legal advice, which will depend on your specific circumstances. © 2021 EMW Law LLP