FAQS – INHERITANCE ACT CLAIMS

The Inheritance (Provision for Family & Dependants) Act 1975, or ‘Inheritance Act’ or ‘1975 Act’ allows certain categories of people to bring a claim against an estate of a deceased person where ‘reasonable financial provision’ has not been made for them under the terms of the will or if no will under the law of intestacy of that deceased person.

Who can make a claim?

The following categories of person can make a claim:

  • a spouse or civil partner of the deceased;
  • a former spouse or former civil partner of the deceased – but they must not have  remarried or entered into another civil partnership;
  • a child of the deceased;
  • any person who in relation to a marriage or civil partnership in which the deceased was at the time a party, was treated by the deceased as a child of the family (this most commonly would be a step child);
  • a person who was cohabitating in the same household as the deceased, as ‘husband or wife’ or as a civil partner of the deceased for a period of two years before the deceased’s death (most commonly known as a cohabitee);
  • any person who immediately before the death of the deceased was being maintained either wholly or partly by the deceased (ie someone financially dependent on the deceased).

The deceased must have been domiciled in England and Wales at the date of death.  This does not include Scotland, Northern Ireland, the Republic of Ireland, the Isle of Man or the Channel Islands.

The applicant can live anywhere in the world.

Court proceedings must be issued within six months of the date of the Grant of Probate.  It is important therefore to act quickly and take legal advice quickly if you think you may have a claim.

What if this deadline has passed?

It may still be possible to bring a claim but you will have to ask for the court’s permission to apply out of time.

What is ‘reasonable financial provision’?

For all applicants except for spouses and civil partners, reasonable financial provision is defined as being ‘such financial provision as it would be reasonable in all the circumstances of the case for the applicant to receive for his maintenance’.

For spouses and civil partners, financial provision is not limited to what is required for maintenance.

How will a court decide?

The court will consider a number of factors in order to decide whether reasonable financial provision has been made under a will or intestacy and, if not, what order it should make for financial provision from an estate.  These factors are known as the ‘section 3 factors’ and include the following:

  • the financial needs and resources of the applicant, both now and in the foreseeable future;
  • the financial needs and resources of any other applicant, both now and in the foreseeable future; 
  • the financial needs and resources of any beneficiary of the estate, both now and in the foreseeable future;
  • any obligations and responsibilities that the deceased had towards any applicant or any beneficiary of the estate;
  • the size and nature of the estate;
  • any physical or mental disability of any applicant or beneficiary;
  • any other conduct.

The court will also consider other factors depending on the category into which the applicant falls.  Regarding a spouse or civil partner the court will consider the age of the applicant, the duration of the marriage / civil partnership and the contribution made by the applicant to the welfare of the family.

The court will also consider the ‘deemed divorce’ test, ie what the applicant would have received had the marriage ended on divorce rather than on the death of one of the parties.

Claims are not limited to minor children.  Adult children can make a claim against a parent’s estate, but such claims are likely to be more difficult to bring than those for minor children.

Such claims can be resolved by alternative methods of dispute resolution such as negotiation or mediation and 1975 Act claims are particularly well suited to mediation.

Ever since the well-known case of Ilott v The Blue Cross and others [2017] where an adult child was awarded £50,000 from her mother’s estate (notwithstanding their estrangement), adult children seek to make a claim from an estranged relative’s inheritance. 

Clients should be made aware of the fact that the Ilott Judgment is one part of the picture as the recent case of Shapton v Seviour [2020] shows, here Ms Shapton brought a claim pursuant to the 1975 Act against her father’s estate. She was 32 at the time and her father, (Colin) died in 2016 and had left his entire estate to his wife Maria who was Ms Shapton’s step-mother. 

Maria was diagnosed with Motor Neurone Disease in 2017 and by the time of the trial, was wheelchair bound and prior to the diagnosis, Maria was a low wage NHS worker. The estate was worth approximately £268,000, most of which was the family home. Both Colin and Maria planned to leave their estate equally to their four children on the second death as between them. However, following Colin’s death and Maria’s estrangement with his children, Maria made a new will whereby her step children (Carly and her brother) were excluded.

Carly thought that it was ‘unreasonable’ to not receive any of her father’s estate given the ‘incredibly close relationship’ she had with her father and claimed that she needed £75,000 of the deceased estate so that she could buy a larger home in
order for her children to have a bedroom of their own and for her partner to have office space.

Carly set out she and her husband were of limited financial means, and had no savings or assets, large credit card debts, and were incurring loan, credit card and bank charges each month. 

Maria defended the claim by asserting that Carly went on regular holidays and they had a combined income that was more than adequate to meet their day to day needs.

The Judge dismissed Carly’s claim, and also ordered for Carly to pay the legal costs for the case. He held that Carly and her husband have a high combined income, which was more than adequate to meet their day to day needs’.

The 1975 Act is designed to allow a court to make provision for a claimant who is in financial need or there is some other reason which would make it unconscionable for provision not to be made for them.

The Act is not designed to compensate disappointed beneficiaries but only those persons who have a financial need. The cases of Rea v Rea [2015] and Barnaby v Johnson [2019] set out where unsuccessful beneficiaries have been criticised by the judiciary for pursuing clearly unmeritorious claims.

In the case of Nahajec v Fowle [2017] EW Misc 11, an adult child successfully brought a case for reasonable financial provision from her father’s estate (valued at £265,000).

In this case there had been a fall out and estrangement between the Deceased and the Claimant. The Claimant was awarded the sum of £30,000 to support her through education to train as a veterinary nurse, even though she had not expected her father to pay for her education during his lifetime.

Whether or not an adult child will succeed in their claim turns on what facts the court considers to be of paramount importance in a particular case, and the weight given to each of the Section 3 factors listed in the 1975 Act. 

The main Section 3 factors, are:
1. the financial resources and financial needs which the applicant has or is likely to have in the foreseeable future;
2. the financial resources and financial needs which any other applicant for an order under section 2 of the 1975 Act has or is likely to have in the foreseeable future;
3. 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;
4. any obligations and responsibilities which the deceased had towards any applicant for an order under the section 2 of the 1975 Act or towards any beneficiary of the estate of the deceased;
5. the size and nature of the net estate of the deceased;
6. any physical or mental disability of any applicant for an order under section 2 of the 1975 Act or any beneficiary of the estate of the deceased; and
7. 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

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