INHERITANCE ACT CLAIMS: ‘REASONABLE FINANCIAL PROVISION’
The following are questions that we are frequently asked regarding contesting a Will.
If you have been left out of a Will or you received a gift but it was not as expected
You can make a claim under the Inheritance Act for ‘reasonable financial provision’.
A claim may be possible if you fall into one of the following categories:
- You are the spouse or civil partner of the deceased;
- You are the former spouse/civil partner of the deceased and you have not remarried or entered into another civil partnership;
- You were living with the deceased for at least two years prior to their death;
- You are one of the deceased’s child (including adult children);
- You were treated as the deceased’s ‘child’ (this could be for example adopted, fostered or step-children – other people may qualify); or
- You were being ‘maintained’ by the deceased – wholly or partly.
The grounds for making a claim is that the Will does not make ‘reasonable financial provision’ for you. This means you cannot simply claim because you feel the Will is unfair or not as you expected. Typically for your claim to be successful, you would need to show that you had a reasonable expectation of having your living costs met by the deceased. If you were financially independent of the deceased before their death, it will be difficult (although not necessarily impossible) to show that you have a reasonable expectation.
Considerations the Court must make
When reaching a decision about inheritance disputes under the Inheritance Act, the Court must take into account:
- Your financial resources and financial needs, both now and in the foreseeable future;
- The financial resources and financial needs which any other applicant for an order is likely to have in the foreseeable future;
- The financial resources and financial needs which any beneficiary of the estate of the deceased has or is likely to have in the foreseeable future;
- Any obligations and responsibilities which the deceased had towards you (or other applicants), or towards any beneficiary of the estate of the deceased;
- The size and nature of the net estate of the deceased;
- Any physical or mental disability that you or any beneficiary of the estate of the deceased has;
- Any other matter, including your conduct and the conduct of any other person, which in the circumstances of the case the court may consider relevant.
The aim in assessing inheritance disputes is to balance the interests of all parties affected. One thing the Court can take into account is any letter of wishes left by the deceased alongside their Will. Typically if you want to exclude someone from your Will or leave them a token gift, it is wise to leave a note of your reasons, should your Will be disputed. However, note that while the letter of wishes can be useful to the Court, it is not binding.
Inheritance disputes: orders that can be made
If your claim for reasonable financial provision under the Inheritance Act is successful, the Court has the power to make a number of orders, including:
- An order that you should receive regular payments from the net estate of the deceased, in amounts as much and for as long as the judge considers to be reasonable.
- An order that you should receive a single lump sum payment from the estate.
- An order that a property which was owned by the deceased should be transferred to you.
- An order for the settlement of any property for your benefit
- An order that a property is purchased using assets from the estate and transferred to you, or held in trust for your benefit
- An order that varies an existing pre- or post-nuptial (or pre- or post-civil partnership) settlement to which the deceased was party, for the benefit of a surviving spouse or civil partner, or for a child or step-child of the deceased.
The Court can also make interim orders where it believes you are in need of immediate financial assistance.
What if there was no Will?
If the person died without a Will, their estate would normally be distributed according to the laws of intestacy. This provides that the deceased’s personal property and belongings plus the first
£250,000 of the estate, and half of the remaining estate will go to their spouse or civil partner, if they have one. The rest will be split between their children. The rules are quite complex (you can see a detailed overview here) and it is always advisable to make a Will so nothing is left uncertain.
If the deceased did not make a Will and you believe you should have some or all of their estate, a claim may still be made under the Inheritance Act in the same way as described above.