Claims under the Inheritance (Provision for Family and Dependants) 1975

When a loved one dies, it can be difficult enough coping with the emotional and financial consequences of their death, without having to worry about either; bringing or defending a claim brought against their estate.    

At The Burnside Partnership we can help with either bringing or defending such claims, with the assistance of specialist lawyers to ensure that the claim is dealt with as quickly and efficiently as possible.  We pride ourselves on our ability to explain matters in straightforward terms and using understandable language to assist you in resolving claims as quickly and cost effectively as possible.

What is an Inheritance Act Claim?

An Inheritance Act claim is a claim brought under the Inheritance (Provision for Family and Dependants) Act 1975 against a person’s estate in England or Wales.

The grounds for bringing a claim are that the will or intestacy has failed to make reasonable financial provision for the person making the claim (‘the Applicant’).  In order to succeed in their claim they also need to demonstrate they have a requirement for financial provision.

Who can bring a claim? 

Only eligible people can bring such claims and these are:-

1.    Spouse or civil partner of the deceased person,

2.    Former spouse or civil partner who has not remarried,

3.    A child (includes adults),

4.    A person treated as a child i.e. step children or others,

5.    Someone who was maintained by the deceased prior to death,

6.    A cohabitee of two years or more.

What factors will the court consider?

When considering whether to make an award to an eligible applicant, the court takes all relevant factors into account, including; the applicant’s financial circumstances, any other relevant person’s financial circumstances, the size and nature of the estate, any obligations owed by the deceased, whether anyone has any physical or mental disabilities and any other relevant factor including conduct.

What awards can the court make?

The court has wide powers to make awards to applicants and if the court considers they have grounds to bring a claim and have demonstrated a financial need then it can make various different awards, including; an award of property, a lump sum, periodic payments, payment of debts and the right to reside in a property.

Under the Act, the court also has powers to set certain transactions aside and to claw back monies into the estate where they have passed outside of it.

Time Limit

There is a strict time limit of 6 months from the date of the grant of probate to issue court proceedings for a claim under the Act, and so applicants must act quickly.  If proceedings are not brought in time, then the permission of the court is required.

Mediation

Many claims under the Inheritance Act are dealt with at mediation to avoid incurring the costs of court proceedings.  Mediation is a process where parties instruct an agreed mediator to assist them in resolving the dispute.  Mediation has high prospects of success and can be quicker and more cost effective than going to court.

Funding

As applicants under the Inheritance Act usually have a financial need, they are usually unable to afford the cost of legal proceedings.  We can consider offering legal funding agreements for such types of claims, such as conditional fee agreements (‘no win no fee’ agreements) or deferred fee agreements.

Conclusion

Inheritance Act claims are not challenges against the validity of a will but claims brought against an estate.  The will is not being challenged at all.  The court has a wide discretion when considering whether to make an award in these types of claims and each case is considered on its own facts.  The main factor the court considers is the financial circumstances of the applicant.  Where an applicant is able to demonstrate both a financial need and that no reasonable provision being made, they will have a strong claim.

We have considerable experience in dealing with these types of claims both as claimant and defendant and are more than happy to have an initial, informal discussion with anyone in need of assistance.