The Inheritance (Provision for Family and Dependants) Act 1975

Also known as “1975 Act claims”, they allow a certain category of applicants to seek financial provision from the estate of a Deceased, where no provision or insufficient “reasonable financial provision” has been provided under the terms of a Will or under the rules of intestacy.

Executors are required to remain neutral regarding any claims. When legal proceedings are initiated, an executor should be named as a Defendant and will need to both acknowledge the claim and respond by providing the court with information about the estate however, the executor has no role in defending such claims.

The executor’s role in these types of claims is to assist the Court. He/she will be entitled to their reasonable costs from the estate, if they act reasonably.

In these circumstances, as executor, you must ensure that you provide the relevant information to the Court and maintain your neutrality. If you cannot do so because you wish to defend the claim being made by the applicant, or make a competing claim, you will need to stand down from your executor role as you cannot be both a claimant and a defendant.  

If as executor, you incur costs in effectively attempting to defend the claim, you will be at risk of your costs not being paid from the estate as they will be deemed to have been unreasonably incurred.

Yes and often this is done to ensure that costs are reasonable and proportionate however, it is important to reiterate that costs in respect of each aspect of the matter must be kept separate. A beneficiary or defendant is not entitled to have their costs paid from the estate whereas, an executor acting reasonably, is.

If you are both executor and beneficiary, you should expect the claimant at an early stage, to raise the issue of a potential conflict of interest and be ready to either properly address the issue or, stand down as executor. Alternatively, it may be possible to agree that you remain in role until a specific point in time, if it is not detrimental to the claim nor the estate.

It is important to be alive to the issues surrounding conflicts of interest from the outset as one must try to avoid a scenario where a conflict of interest occurs at later stage of the matter as between the executor and beneficiary role and at which point, the solicitor instructed in respect of that dual role, will be left with no option but to cease acting all together.

Remaining neutral as an executor is extremely important. If you do feel that given circumstances, you are able to act impartially, this will give rise to a conflict of interests. At that point, it is important to consider whether you should renounce from your executorship role and consent to appointing an independent executor in your place.

The executor’s position is to assist both the Court and the parties. The executor can answer questions which facilitate settlement but it is not their job to become embroiled in the negotiations. Executors are often ‘on call’ and available to sign any settlement agreement during a mediation but not in attendance. If a settlement is agreed or a final hearing takes place at Court, an executor will then be bound to follow the terms of any settlement agreement or Court order.

If you are left out of a Will, there are various options available to you. A number of these rely on the deceased’s Will being invalid and others, rely on you having not been left what is known as “reasonable financial provision” or not what you had been promised. Read more here.

Also known as “1975 Act claims”, they allow a certain category of applicants to seek provision from the estate of a Deceased where no provision at all or, no “reasonable” financial provision has been made by the terms of their Will or under the rules of intestacy.

1. spouse or civil partner of the deceased;
2. former spouse or civil partner of the deceased (who has not remarried or entered into another civil partnership; and subject to the terms of any divorce settlement);
3. a child of the deceased (including adult children);
4. 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 (most commonly a step-child);
5. a person who was living 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 ending immediately on the deceased’s death (most commonly known as a cohabitee); and
6. any person who immediately before the death of the deceased was being maintained either wholly or partly by the deceased (i.e. someone financially dependent on the deceased).

Any Court proceedings should be issued within 6 months from the date that the Grant of Probate was extracted. It is important to note that the preparation needed to issue 1975 Act claims can be time consuming and it is therefore vital to act promptly. Although, claims maybe be brought after the expiration of the “limitation” period, the Court’s permission is required and various elements must be satisfied to obtain such permission. It is therefore important to act promptly so as to avoid needing to make an application for permission, if at all possible.

A requirement of the Act, is that the Deceased must have been “domiciled” in England and Wales. This is not as simple as considering where someone lived although that is the starting point, it a legal concept which can be explored further if there is a question over domicile.

For spouses and civil partners,  appropriate reasonable financial provision is not limited to only maintenance and it can therefore be such amount to allow the surviving spouse to live in the way to which they have been accustomed, if the extent of the estate allows for it. In spousal claims, the Court will often consider the “deemed divorce” test as a starting position for spouses and civil partners, to assess what might be ‘reasonable’. The test gets it name from the fact the Court has regard to what would have awarded if the applicant was making an application for financial remedies as part of divorce proceedings.

In respect of the other classes of applicants, reasonable financial provision is defined as “such financial provision as it would be reasonable in all the circumstances of the case for the applicant to receive for his maintenance”. It is therefore case-specific and dependent on factors such as the size of the estate, if they are any other applicants and the needs of the named beneficiaries.

The Court will assess various factors to determine whether adequate financial provision has been provided under a Will or the intestacy rules.

1. The financial needs and resources of the applicant, both now and in the foreseeable future;
2. The financial needs and resources of any other applicant, both now and in the foreseeable future; 
3. The financial needs and resources of any beneficiary of the estate, both now and in the foreseeable future;
4. Any obligations and responsibilities that the deceased had towards any applicant or any beneficiary of the estate;
5. The size and nature of the estate;
6. Any physical or mental disability of any applicant or beneficiary;
7. Any other conduct.

It is therefore important as an applicant, to have as much financial information as possible about your income and outgoings, to give to your solicitor, so that they can fully advise you about your claim.

It is important to see a Solicitor and seek legal advice. It would be beneficial to provide the Solicitor with a copy of the Will and a copy of the Grant of Probate. If you have no access to the Grant of Probate, an indication of the value of the estate will be necessary.  In addition, you will need to provide information in respect of your financial position, this will include information surrounding your income and outgoings.

Not all matters proceed to trial; in fact a very small percentage of these types of claims make their way to a final hearing. Wright Hassall dealt with the only 1975 Act claim to have ever been before the Supreme Court. 1975 Act claims lends themselves very well to negotiations generally or more structed mediations, with the aim of resolving matters without the need to attend a trial or in some cases, before issuing proceedings.