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Inheritance disputes: left out of a will?

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Posted by Martin Oliver on 19 April 2013

Martin Oliver - Contesting a Will Lawyer
Martin Oliver Partner

How to contest a will?

If you believe that you have unreasonably been left out of a will, you may be able to apply for reasonable financial provision from the deceased estate pursuant to the Inheritance (Provision for Family Independence) Act 1975 (“Inheritance Act”). The Inheritance Act essentially details several hurdles in which a person needs to overcome, in order to obtain reasonable financial provision from the deceased’s estate. The first hurdle being the category of persons entitled to bring a claim to contest a will.

First hurdle in inheritance disputes: categories of claimant

To bring a claim pursuant to the Inheritance Act, a person must be one of the following:

  • the wife or husband or civil partner of the deceased; 
  • a former wife or former husband or former civil partner of the deceased who has not re-married; 
  • a child of the deceased; 
  • any person treated as a child of the family; or
  • any persons being maintained by the deceased.

Depending upon which category stated above, there are different factors to be taken into account when determining whether an individual is entitled to reasonable financial provision. These are explored in more detail below.

Second hurdle in Inheritance Disputes: reasonable financial provision

The wife or husband or civil partner of the deceased 

The Inheritance Act defines reasonable financial provision in inheritance disputes as being “such financial provision as it would be reasonable in all the circumstances of the case for a husband or wife to receive, whether or not that provision is required for his or her maintenance”.  

Where the marriage was continuing at the date of death, the courts will often apply the “deemed divorce test” ie if the spouse had not died and the parties had divorced, what would the parties receive? Factors taken into account when determining this question include the age of the applicant and the duration of the marriage, the contribution made by the applicant to the welfare of the family of the deceased, including any contribution made by looking after the home or caring for the family. In addition, the court will take into account the following factors:

  • The financial resources and financial needs which the applicant has or is likely to have in the foreseeable future.
  • The financial resources and financial needs which any other applicant has or is likely to have in the foreseeable future.
  • 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.
  • Any obligations and responsibilities which the deceased had towards any claimant, or towards any beneficiary of the estate of the deceased.
  • The size and nature of the net estate of the deceased.
  • Any physical or mental disability of any applicant or beneficiary of the estate of the deceased.
  • Any other matter, including the conduct of the claimant or any other person which in the circumstances of the case the court may consider relevant.

Claims by a person living as husband or wife of the deceased 

Reasonable financial provision as defined by the Inheritance Act in such cases is “such financial provision as it would be reasonable in all the circumstances of the case for the applicant to receive for his maintenance”.  

When determining maintenance, the court must balance the factors detailed 1 to 7 above. The court will also take into account the age of the applicant and the length of the period in which the applicant lived as husband and wife and in the same household as the deceased. Other factors including the contribution made by the applicant to the welfare of the family of the deceased will also be taken into account.

The court is simply looking at the level of the maintenance the applicant requires for the foreseeable future in order to keep the same standard of living.  

Claims by a child (including adult children) 

There have been numerous cases on this category of applicant and accordingly there is a separate article relating specifically to this point.

Claims by persons being maintained by the deceased 

The same factors 1 to 7 as detailed above will be balanced by the court. Questions will be raised as to the extent to which the deceased assumed responsibility for the maintenance of the applicant and the length of time in which maintenance was paid. Maintenance can include monies/accommodation and/or any other financial benefit. Such a claim would only include ‘such financial provision as it would be reasonable in all the circumstances of the case for the applicant to receive for his maintenance’.

Third hurdle in Inheritance Disputes: domicile

To be eligible to bring a claim pursuant to the Inheritance Act, the deceased must have died domiciled in England and Wales. The issue of domicile does not apply to the applicant making the claim.  

Fourth hurdle in Inheritance Disputes: possible orders

Before embarking on a claim pursuant to the Inheritance Act, an applicant should clarify as to what he/she is looking to achieve. Whilst the court can make a number of orders, they are most likely to be one of the following:

  • payment of monies from the estate; or 
  • a transfer of property.

Fifth hurdle in Inheritance Disputes: time limit

Applications for reasonable financial provision pursuant to the Inheritance Act must normally be made within 6 months from the date in which the first Grant of Probate was obtained. 

It is important when seeking to bring a claim pursuant to the Inheritance Act, to obtain legal advice at an early stage. 

About the author

Martin specialises in inheritance disputes such as contesting a will and litigation involving wills and trusts.

Martin Oliver

Martin specialises in inheritance disputes such as contesting a will and litigation involving wills and trusts.

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