Inheritance Act Claims
Making inheritance act claims when you've been left out of a will
If you believe you should have inherited from an estate, you must act quickly. Claims under the Inheritance (Provision for Family and Dependants) Act 1975 must be made within six months of the Grant of Probate being issued. After this deadline, you will need the Court's permission to proceed, which may not be granted.
What is a 1975 Inheritance Act Claim?
Sadly, it is not uncommon to find that, following someone's death, a person who thought they would inherit from an estate has been excluded or received far less than they anticipated.
Sometimes, this is due to a will being changed in suspicious circumstances. However, this is not always the case. It may be that the deceased understood what they were doing when they excluded someone from their will, or that they did not make a will, meaning someone has been excluded because they do not inherit under the intestacy rules.
Typical examples of such situations include:
- A spouse, in whose name all the matrimonial assets were held, does not include their spouse in their will or provides very little to them. Perhaps the most famous example is William Shakespeare, who left his wife his "second best bed". Sadly, it still happens.
- On a second marriage the deceased provides in their will for their children from their first marriage rather than their new spouse.
- One-half of a couple who have been together for several years but never married dies without leaving a will, meaning their partner does not benefit from their estate.
- A parent excludes a child from their will.
Request legal advice on inheritance act claims
Why choose our inheritance act solicitors?
Our team has experience across all types of inheritance act claims:
- Making claims - We regularly help clients seeking reasonable financial provision from estates where they have been excluded or inadequately provided for.
- Defending claims - We defended a client against a claim by a brother who alleged he was unable to work. By raising a needs-based defence and challenging weak evidence, we secured a settlement for significantly less than originally claimed.
- Claims several years after death - We assisted a client in making a 1975 Act claim against her late husband's estate several years after his death. He had left the majority of his estate to his children from a previous relationship, giving our client a very limited entitlement to income from a small trust. Despite the delay, we successfully negotiated a settlement that provided our client with lifetime income and achieved a substantial inheritance tax refund.
Members of our team are also recognised by the Legal 500 and Chambers and Partners High Net Worth Guide for their expertise and experience in contentious probate cases. They are also members of The Society of Trust and Estate Practitioners (STEP) and the Association of Contentious Trust and Probate Specialists (ACTAPS).
Meet the inheritance act claim team
Craig Ridge
Partner and Head of Contentious Probate
Elizabeth Tolmie
Associate - Contentious Probate
Georgia Stott
Senior Associate - Contentious Probate
Joseph Martin
Senior Associate - Contentious Probate
Who can make an inheritance act claim?
Not everyone who thinks they have been left out of a will is entitled to make a claim. To qualify, you must fall into one of the following categories:
- Spouse or civil partner
- Former spouse or civil partner, but not one who has formed a subsequent marriage or civil partnership
- Child of the deceased (this includes someone who was treated as a child of the deceased)
- Someone who was, immediately before the deceased's death, being maintained by the deceased
- Someone who was, for at least the two years immediately before the deceased died, living in the same household as the deceased, as if that person and the deceased were a married couple or civil partners
However, just because someone falls into one of these categories, it does not mean they will automatically be entitled to make a claim. They also need to prove two additional things:
- That they have not received reasonable financial provision from the estate; and
- They require reasonable provision from the estate for their ongoing maintenance.
The only exception to this is the case of a spouse or civil partner. Whilst they need to show that they have not received reasonable financial provision from the estate, they do not need to show that they require such provision for their ongoing maintenance.
Claim for reasonable provision
The starting point under English and Welsh law is that a person is entitled to leave their estate to whomever they wish – the old adage that you can "leave it all to the cats' home" generally being true – the law also recognises that, in certain circumstances, it may need to intervene. If this is the case, a person may be able to make a claim for reasonable provision from the deceased's estate under the Inheritance (Provision for Family and Dependants) Act 1975.
What is a reasonable financial provision?
What will constitute "reasonable provision" will depend on the circumstances; therefore, it is hard to define it. For anyone other than a spouse or civil partner, the question of reasonableness will depend in part on what provision the deceased made for them during their lifetime.
For example, if the potential claimant was a niece of the deceased, and the deceased had been paying their mortgage for the past 10 years, a reasonable financial provision may be the amount it would take to pay off the mortgage.
A typical example is where a couple have been living together in a property owned by the deceased. Reasonable financial provision in such circumstances may be that the partner has the right to occupy the property for the remainder of their life, or that they receive a gift of cash sufficient for them to purchase an alternative property.
Latest successes
What sort of provision might the Court award?
Sometimes claimants are surprised at what the court could order. People tend to assume they will receive cash/property outright, but this may not be true. An award may take the form of:
- An absolute capital sum (i.e. cash).
- 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).
- An option to purchase an asset of the estate.
For example, in cases involving adult children from a previous relationship, it is not uncommon for the court to impose a trust. If the deceased has left their estate to their children at the exclusion of their new partner, the court may consider that it is unfair for the partner to receive nothing (if they are unable to meet their own needs) but may also recognise that to gift the estate to the new partner outright would mean the children of the deceased would lose out. The court may order that the estate, or a particular asset, should be held in trust for the benefit of the claimant for their lifetime but passed to the original intended beneficiaries on their death.
The 1975 Act lists certain criteria that the court should consider when determining what order it should make, as follows:
- The financial resources and financial needs which the claimant has or is likely to have in the foreseeable future.
- The financial resources and financial needs which any other claimant is likely to have in the foreseeable future.
- The financial resources and financial needs which any beneficiary has or is likely to have in the foreseeable future.
- Any obligations and responsibilities the deceased had towards any claimant or beneficiary.
- The size and nature of the net estate.
- Any physical or mental disability of any claimant or any beneficiary.
- Whether the deceased maintained the claimant and, if so, the length of time for and the basis on which the deceased did so, and the extent of the contribution made by way of maintenance.
- The manner in which the claimant was being or in which they might expect to be educated or trained.
- Whether and, if so, to what extent the deceased assumed responsibility for the maintenance of the claimant.
- Any other matter, including the conduct of the claimant or any other person, which, in the circumstances of the case, the court may consider relevant.
For claims by spouses or civil partners the court will also consider:
- The age of the claimant and the duration of the marriage or civil partnership.
- The contribution made by the claimant to the welfare of the family of the deceased, including any contribution made by looking after the home or caring for the family.
- What the claimant may have expected to receive had the marriage or civil partnership ended in divorce rather than death, bearing in mind that in a divorce, there are the needs of two people to consider, not just one.
Obviously, not every factor will be relevant to every case, but this shows that the court has to look at the entire picture. It cannot focus on the needs of just the claimant to the exclusion of the original beneficiaries or anyone else who may wish to make a claim. The court has to bear in mind everyone’s circumstances and distribute the estate (which is, of course, a limited pot) as fairly as possible.
What can a beneficiary do if a claim is made against an estate, but they have their own needs?
The court has to consider the circumstances of all those affected by the claim, including the original beneficiaries. Sometimes a beneficiary has been chosen by the deceased for the very reason that they feel they need to benefit from their estate. For example, if one of the deceased’s children has always lived with them, they may feel it is only fair to leave them their house for fear that otherwise they will be made homeless.
But what happens if a sibling makes their own claim on the basis that they need help paying their mortgage? The sibling living in the house could make a “needs based defence”. This means that in addition to perhaps defending the claim on the basis that the claimant does not need what they say they need, they would also defend it on the basis that if the claimant were to receive what they have claimed, this would leave the defendant unable to meet their own needs. The court then has to try and strike a balance that ensures the needs of all parties who are deemed in need of reasonable financial provision are met.
What happens if I need more than the value of the estate?
The court can only make an order regarding the net estate, which is what is left over after all debts and liabilities of the estate have been paid. The court has a finite sum to work with, so there is no point claiming more than the value of the net estate.
That said, the law recognises that a deceased person may have deliberately reduced the value of their estate to avoid a 1975 Act claim. It is rare, because most people are not aware of this Act before they die, but it is possible. For example, if someone has received advice whilst alive that someone may have a claim against their estate when they die. If there is evidence that the deceased gifted assets during their lifetime with this in mind, the court can require the recipient of any such gift to return it to the estate so that it can be included in the net estate.
What role does an executor take in a 1975 Act Claim?
Executors are automatically named as defendants to a 1975 Act claim on the basis that they are responsible for the estate. However, this does not necessarily mean that they have a personal interest in the outcome. If they are a beneficiary they will, but not all executors are also beneficiaries. Even if they are a beneficiary, they may believe that they have no personal defence to the claim and would prefer to let the other beneficiaries “fight it out”.
An executor should remain neutral in relation to a 1975 Act claim. This is on the basis that the claim itself does not affect the value of the estate. All it affects is how the estate is distributed. The executor still has a role to play, but it is limited to providing information about the value and makeup of the estate, so that the court has this to hand when making its final decision. If they remain neutral, they should receive their reasonable costs from the estate.
If an executor who is also a beneficiary wishes to defend the claim as a beneficiary, they are entitled to do so. However, they will not automatically be entitled to recover their costs from the estate.
How long do you have to make a 1975 Act claim?
There is a deadline for making a 1975 Act Claim, which is six months from the date the probate is issued. However, whilst this is an important deadline to meet where possible, it does not necessarily mean someone cannot make their claim.
A claim can only be made after the 6-month deadline if the Court gives permission. The request for permission is included in the claim itself, and an explanation as to why the deadline was not met and why the Court should give permission must be included. The Court has relatively broad discretion when making this decision. It will consider various factors, including:
- Whether the claimant acted promptly in making their claim, despite it being after the 6-month deadline
- Whether negotiations began before the deadline
- Whether the estate has been distributed before the claim was notified to the defendants
- Whether not allowing the claimant to make their claim would leave them without recourse to other remedies
- Whether the claimant has an arguable case
In other words, the Court needs to be satisfied that the claimant has not unreasonably delayed in making their claim, that no one will be overly prejudiced by them being allowed to make their claim, and that if they are to be allowed to make their claim, they stand a reasonable prospect of success.
The application for permission to claim out of time can be dealt with at different stages. Sometimes, it is dealt with at the final hearing. However, it can also be dealt with at a directions hearing. There may be tactical reasons for wanting the application to be dealt with at different stages. For example, if a defendant thinks it is unlikely that the application for permission to make a claim out of time will succeed, they may want it dealt with as early as possible.
Sometimes, claimants wonder whether they can do anything to delay probate being issued, giving them more time to consider their claim. The answer is no. Executors cannot reasonably be expected to delay applying for a grant of probate because a 1975 Act claim is threatened (especially if there is inheritance tax to pay).
The only way to prevent probate from being issued is to lodge a caveat. It is not appropriate to do so where the only reason it is lodged is to delay probate so that a 1975 Act claim can be delayed. This is an abuse of process, and the Court will not look kindly on such conduct.
Yes, adult children can make claims under the Inheritance (Provision for Family and Dependants) Act 1975 if they can show they require reasonable financial provision for their maintenance and have not received it from the estate.
If someone dies without a will (intestate), the intestacy rules determine who inherits. However, if these rules do not provide reasonable financial provision for eligible family members or dependants, they may still be able to claim under the 1975 Act.
Yes, if you were being maintained by the deceased immediately before their death, you may be entitled to claim reasonable financial provision, even if you were not related to them.
