Inheritance Act claims

Do you understand who can make a claim if they have been cut out of an inheritance and how to go about these proceedings?

Introduction

Section 1 of the Inheritance (Provision for Family and Dependants) Act 1975 (“the Act”) allows certain categories of persons to apply to the Court for an Order under Section 2 of the Act on the ground that the disposition of the Deceased’s Estate effected by his Will or the law relating to intestacy, or the combination of his Will and that law, is not such as to make reasonable financial provision for the applicant.

Who Can Make a Claim?

If the person died domiciled in England and Wales a claim can be made by any of the following who survived that person:

• The spouse / civil partner of the Deceased;
• The former spouse / civil partner of the Deceased, provided that they have not re-married or entered into a further civil partnership;
•  Someone who was living with the Deceased in the same household and as the husband, wife or civil partner of the Deceased for the whole of the period of two years prior to the Deceased’s death;
•  A child of the Deceased (including an adult child);
• Someone who was treated as the Deceased’s “child”;
• Someone who was “maintained” by the Deceased.

What is “reasonable financial provision”?

Anyone who is not a surviving spouse or civil partner is entitled to claim under the Act for such financial provision as it would be reasonable for that person to receive for his or her maintenance.

A spouse or civil partner is entitled to such provision as is reasonable, whether or not that provision is required for his or her maintenance.

What Orders can the Court make?

Under Section 2 of the Act the Court, if it is satisfied that reasonable financial provision has not been made for the applicant, can make a variety of Orders, including:

• A Periodical Payments Order;
• A Lump Sum Order;
• A Transfer of Property Order;
• A Property Settlement Order;
• An Order for the acquisition out of property comprised in the Estate of specified property and for the transfer or settlement of the property so acquired to the applicant;
• An Order varying any anti-nuptial or post-nuptial settlement (including such a settlement made by Will);

What matters will the Court take account of?

In determining whether and in what manner to exercise its powers the Court will have regard to:

• The financial resources and financial needs which the applicant has or is likely to have in the foreseeable future;
• The financial resources and financial needs which any other applicant has or is likely to have in the foreseeable future;
• The financial resources and financial needs which any beneficiary of the deceased’s Estate has is likely to have in the foreseeable future;
• Any obligations and responsibilities which the deceased had towards any applicant or towards any beneficiary of the deceased’s Estate;
• The size and nature of the net Estate of the deceased;
• Any physical or mental disability of any applicant for an Order or any beneficiary of the deceased’s Estate;
• Any other matter including the conduct of the applicant or any other person which in the circumstances of the case the Court may consider relevant.

Is there a time limit for making a claim?

The answer is yes. Section 4 of the Act provides that an application for an Order “shall not, except with the permission of the Court, be made after the end of the period of six months from the date on which representation with respect to the Estate of the deceased is first taken out”.

How can we help?

We have experience of acting for clients both in bringing and defending Inheritance Act claims.

For more information about making or defending an Inheritance Act claim contact a member of our Dispute Resolution Team.