Inheritance claims

The clock is ticking

Where an individual is aggrieved because they have been insufficiently financially provided for under the terms of a Will or the rules of intestacy (where no Will exists), or not provided for at all, the Inheritance (Provision for Family and Dependants) Act 1975 allows that person to apply to the court to seek financial benefit from the deceased’s estate. The applicant must be able to prove that the Will has not made “reasonable financial provision” for the applicant. However it is not as simple as it may sound and we explore some of the criteria for eligibility below:-

Who can make a claim?

• Husband/Wife or civil partner of the deceased
• A former Husband/Wife or civil partner of the deceased who has not remarried
• A child of the deceased
• Any person whom the deceased treated as a child/ took on the role of parent to said child (eg, a step-child or child of a partner);
• Any person who, immediately before the death of the deceased, was being financially maintained by him.
• Any person whom was living in the same household as the husband or wife of the deceased for a period of 2 years ending immediately before the date of deceased’s death;
• Any person whom was living in the same household as the civil partner of the deceased for a period of 2 years ending immediately before the date of deceased’s death;

Does the Act apply to anyone?

No. The ability to make an application under the Inheritance (Provision for Family and Dependants) Act 1975 only applies where the deceased died domiciled in England and Wales. It does not apply where the deceased was once domiciled in England and Wales and subsequently acquired a new domicile (i.e through moving abroad to live and conduct his life). At the date of the deceased’s death, he must have been domiciled in England and Wales for a person falling within one of the above categories to make an application to receive a financial benefit from the estate.

Can I make a claim at any time following the death of the deceased?

An application must be made within 6 months of the date of issue of the Grant of Probate/Grant of Representation. Whilst the court does have the power to extend the time for making an application, recent case law demonstrates a sharp decline in their willingness to grant such an extension. Thus, if you think you are eligible to make an application you must act quickly.  It is for this reason that the personal representatives of the estate are generally advised not to distribute the estate until 6 months has passed from the date of the Grant of Probate as they may be held personally liable if insufficient funds remain in the estate for a person whom has made an application to receive financial benefit.

Factors the court will consider:-

Even if an individual manages to satisfy the eligibility criteria discussed above, this does not automatically guarantee that they will receive a financial benefit from the estate of the deceased. The following factors will be considered by the court in deciding whether reasonable financial provision has been made for the applicant:-

• The financial resources and needs of the applicant, other applicants and beneficiaries of the estate now and in the foreseeable future;
• The deceased’s moral obligations towards any applicant or beneficiary;
• The size and nature of the estate;
• The physical or mental disability of any applicant or beneficiary;
• Anything else which may be relevant, such as the conduct of the applicant.

In addition to the factors listed above, in considering applications for financial benefit by a spouse or civil partner or former spouse or civil partner, the court shall also consider the age of the applicant and the duration of the marriage or civil partnership and the applicant’s contribution to the “welfare of the family of the deceased, including any contribution made by looking after the home or caring for the family”.

If you would like to find out more information please contact our Dispute Resolution team at any of our offices in Llanrwst (01492 641222), Wrexham (01978 291000) or Chester (01244 312166) or make an enquiry via email to [email protected]