Feeling left out?

wills, trusts and estates

One of the hardest things following the death of a relative can be the realisation that they have made no provision for their family and dependents or that the provision they have made is simply inadequate for one or more of them.

There can be many reasons for this – sometimes it is simply that they have not made a will or haven’t kept their will updated following changes in circumstances (for example often people made a will before marrying without realising that the marriage invalidated the will or their will is old and badly drafted and makes provision for the children the person had at the time but not for children they had after making the will).

Sometimes they may have intended to make provision during their lifetime but died before doing so.

Sometimes it is due to deliberate choices by the deceased to cut people out of their will; sometimes with good reason, sometimes…less so.

Under English law a person making a will (the Testator) has the right to make whatever provision they like in their will subject to very few constraints.

Well, that’s the theory.

The Inheritance (Provision for Family and Dependants) Act 1975

In practice, the Inheritance (Provision for Family and Dependants) Act 1975, usually referred to as the Inheritance Act or the IPFDA, places significant limits on what a testator should do.

The will can still make whatever provision the testator wants but if it fails to make reasonable provision for certain classes of people, those people can challenge the will and ask a court to order that reasonable provision be made for them. The same applies in cases where the deceased did not make a will and the intestacy rules do not make reasonable provision.

Who can claim?

The classes of people covered by the legislation are much as you would expect: spouses and civil partners, cohabitants, the children of and those treated as their children by the deceased, and people maintained by the deceased during their lifetime.

Such people can, if they feel adequate provision has not been made for them, bring claims within six months of the grant of probate or letters of administration. After that date, they may still be able to bring a claim but will need the permission of the court and will need to have good reasons why the claim wasn’t or couldn’t be brought during the six months.

This means that the process of administering the estate has to have started before a claim can be brought.

How then can a potential claimant know whether provision has been made for them or whether probate or letters of administration have been granted?

The obvious starting point is to ask.

If one knows who is dealing with the estate, one can ask them if there is a will and if so, what the will says and how far along the process is.

If one does not know or (frequently the case) does not trust the person dealing with the estate, the sensible approach is to search at the Probate Registry.

If the death was in the last six months one can lodge what is known as a ‘standing search’ at the Probate Registry.

By doing that, the Probate Registry will notify you if a grant or letters of administration is taken out in respect of the estate of a particular person during the period the search is in place. At present, they run for six months. They can be extended for further six month periods as necessary.

If a grant has been issued, you also get a copy which will include a copy of the will. If letters of administration were issued, you know there was no will.

A standing search should be instituted in any case where you think you may need to make an Inheritance Act claim.

How likely is a claim?

Whether adequate provision has been made will always depend on the circumstances specific to each particular case and largely depends on what the relationship between the Claimant and the deceased was.

Spouses and civil partners

For spouses and civil partners, unless there was a separation order in place the usual starting point is that they should be receiving at least the provision that would have been made had there been a divorce instead of a death. So, in most cases the starting point will be an equal division of the assets. If the will provides for less than that, a claim is quite likely!

Former spouses and civil partners who have not remarried or entered into a new civil partnership may also be able to claim depending on what orders were made during the divorce or dissolution proceedings.

Cohabitants

Cohabitants who qualify to bring a claim (not all will!) are usually entitled to ‘such provision as is required for their maintenance’.

This can be a tricky standard to pin down. At the most basic level it means the provision needed to ensure that the claimant can meet their outgoings. Provision can however be made by paying off debts or providing a property for the claimant to live in. Exactly what might be required is something that only the court can ultimately determine.

Children and those treated as children of the deceased

Here too the standard is what is required for their maintenance – complicated by considerations such as whether the deceased was maintaining their offspring, whether the ‘child’ is a minor or an adult, their earning capacity or lack thereof.

For an example of how complicated it can be to establish what reasonable provision is and how far apart opinions can be on the issue see the various decisions in Ilott v. The Blue Cross.

People maintained by the deceased

Again the standard is what is required for their maintenance with relevant factors including the extent to which and the basis on which the deceased took on responsibility for maintaining the applicant and for how long they did so.

General factors to be taken into account

In all cases the court has to consider:

  • the claimant’s future financial needs and resources (including earning capacity)
  • the future financial needs and resources (including earning capacity) of any other claimant
  • the future financial needs and resources of any beneficiary (including earning capacity)
  • the deceased’s obligations and responsibilities towards any claimant or beneficiary
  • the size and nature of the deceased’s net estate
  • the physical and/or mental condition of the claimant or any beneficiary
  • any other matter the court considers relevant (including the conduct of any party)

Whether any particular person may have a claim and if so what they might be entitled to is therefore a tricky question and if you have any concern about the issue, you should seek advice by contacting us.

Ian Pinder is a Solicitor with extensive experience of acting in claims relating to disputed wills and estates.

IMPORTANT NOTICE
This literature is intended purely as an overview of this topic and does not constitute legal advice.