Where a Will fails to make reasonable provision for family and dependants, they are entitled to bring a claim under the Inheritance (Provision for Family and Dependants) Act 1975. This situation is most likely when an ex-spouse has been receiving maintenance from the deceased or perhaps they were living with a cohabitee and had a child and they consider the Will to be unfair and would like to make a claim on the estate. The action can be brought in the High Court (Chancery or Family Division) or to any County Court, although we would suggest trying mediation first. It is a condition that the person who died was domiciled in England or Wales, although they do not have to have died there.
Under the Act, the applicant has to file a claim no later than six months after the grant of probate or letters of administration. If there is any risk of a claim being prepared or made, executors should limit any allocation made during that six-month period. Having the right to claim does not mean that a person automatically wins the case if a claim is made, particularly where the claimant has not been dependent on the departed.
Completing the administration of the action are a matter for the court to decide. Such a individual is not paid automatically by the estate nor are the costs remunerated automatically from the estate.
An application should generally be brought within 6 months of the grant of probate or letters of administration being given. However, the Court has the discretion to allow later applications. This means if you are an executor and you believe a claim is going to be made, it’s best to limit any distribution of the estate in the 6 months after the grant of probate has been given.
To bring an application you have to be one of the following:
The financial provision is what is considered reasonable in the circumstances. The Court looks at the financial needs and resources, any moral obligation there may be to support, the size and nature of the estate, any physical or mental disability of the dependant and "any other relevant matter".
The Court can make an Order against any asset of the estate and any gift made within 6 years before the death. It may Order maintenance (periodical payments), lump sum payments, a transfer of property, the estate to purchase property or variation of any marriage settlement which was previously reached.
This will very much depend on the individual circumstances of the case, however generally speaking the estate will probably end up paying at least a proportion of the costs, if not all of them. This is why we always advise executors to try to settle the matter amicably between the parties first, if this doesn’t work, then to try mediation and then court only as a last resort.
These claims can be complicated and are regularly disputed. If you would like to speak to an expert, please contact us now on 01935 82388, so we can best advise you on your situation.