Who can bring a claim?
- Spouse or civil partner of the deceased.
- Former spouse or civil partner of the deceased providing they had not remarried or entered into another civil partnership.
- Child of the deceased.
- Someone who was treated by the deceased as a child of the family (commonly a stepchild).
- Someone who cohabited as husband or wife with the deceased in the two years immediately preceding their death.
- Anyone who was directly or indirectly financially maintained by the deceased immediately before their death. Maintenance can be financial or in kind (such as living rent free).
Any claim should and ought to be issued within six months of the date of the Grant of Probate; outside of this time, permission from the Court is needed to proceed with a claim. However, making a claim does not rely on the existence of a will; if the deceased died intestate, a claim can still be made.
What constitutes ‘reasonable financial provision’?
This will depend on individual circumstances. Other than spouses or civil partners, the question will hinge on whether the deceased should have made sufficient financial provision for the claimant’s maintenance. For spouses and civil partners, the question turns on whether reasonable financial provision has been made in all the circumstances (not just for maintenance) and the Court will often assess a spousal claim by reference to the sum which would have been awarded if the marriage / civil partnership had ended in divorce rather than death.
In all cases, the court will take into the account the following:
- The financial resources and financial needs of the applicant both now and in the foreseeable future.
- Any obligations and responsibilities the deceased had towards the applicant.
- The size and nature of the estate.
- Any physical or mental disabilities of the applicant.
- Anything else the court might find relevant such as the length of marriage, age of the applicant, and their contribution towards the family and household.
Powers of the court
If a claimant is successful, the court has various methods at its disposal by which it can make financial provision among which are the ability to:
- Award a lump sum.
- Award regular payments.
- Order the transfer of property or other asset.
- Order the sale of property or other asset and divide the proceeds.
- Order a property to be held in trust for the applicant.
Understanding how the legislation applies to individual circumstances and how the court might approach a claim is not straightforward. We have considerable experience in advising on Inheritance (Provision for Family and Dependants) Act 1975 claims and have dealt with the only 1975 Act claim to ever have gone to the Supreme Court - see below for articles regarding this.
- Ilott v Blue Cross and others - click here
- Inheritance Act claims by adult children post Ilott - click here
- The Judgment of Ilott v Mitson & others: Facts in five - click here
How much does it cost to contest a will?
The amount it will cost to contest a will depends on how quickly the dispute settles. Please see our main webpage for more information about the likely costs involved, and also about possible payment/funding options.
We are very happy to talk through your options and advise on whether you may have claim under the Act and the likelihood of success. Please do not hesitate to get in touch with us via the form below.