If you have been excluded from a will, have not been left as much as you were expecting, or do not inherit due to the rules of intestacy, it may be possible to make a claim using the Inheritance Act.
What Is an Inheritance Act claim?
While a person may leave their estate to whomever they wish in their will, the law does make provision for those who might reasonably expect an inheritance but are excluded or receive less than they need. The Inheritance (Provision for Family and Dependants) Act 1975 (the Inheritance Act) seeks to protect those who are financially dependent on another person who then dies without leaving them with a sufficient inheritance for their needs. Claims can also be made where no will exists and the rules of intestacy have been applied. In successful claims the Inheritance Act allows the court to change the way the estate is distributed.
Who can make an Inheritance Act claim?
Those protected by the Inheritance Act include:
- spouses/ civil partners
- children (both minors and adults), including adopted children and step-children
- former spouses/ civil partners (if they haven’t remarried)
- someone who continually cohabited with the person who died for at least two years before their death
- someone who was financially maintained by the person who died.
Is there a time limit on making an Inheritance Act claim?
The Inheritance Act claim must be made within six months of the date that probate was granted. In exceptional circumstances it may be possible to apply to court for an extension to this time limit, but action should be taken as soon as possible as delay can prove disastrous and prevent a claim.
What is ‘reasonable financial provision’?
For an Inheritance Act claim, ‘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”. This definition applies to all claimants apart from spouses and civil partners for whom financial provision is not limited to what is required for maintenance. The court will consider what a spouse or civil partner could have expected in a divorce, though this will not set a minimum or maximum amount. For everyone else, the court will look at what is needed for daily living expenses, in addition to considering available provision for housing. It can be very complex to value these claims and detailed information on the applicant's financial resources and expenditure is essential, as well as historic information about the standard of living they enjoyed with the person who has died.
What makes a successful Inheritance Act claim?
While each claim is considered by the court on an individual case-by-case basis, there are certain factors that are important when judging all such cases.
- What is the total size of the estate in question?
- What are the financial resources and needs of the claimant?
- What are the financial resources and needs of the other beneficiaries?
- Did the person who died have any obligations towards the claimant?
- Does the claimant have any disabilities at all?
- What was the nature and longevity of the relationship between the claimant and the person who died?
- Are there any other relevant circumstances to be considered?
It is up to you the claimant to show the court that the provision they have been left (if any at all) is insufficient to meet their reasonable financial needs.
How do I make an Inheritance Act claim?
The first step in making a claim is to seek legal advice as soon as possible. Depending on individual circumstances, the next stage would be to collate evidence and financial information in order to set out the claim in detail in writing, with supporting documentation, and to identify what financial support is needed. Sometimes, there may be a need for urgent financial support and if this cannot be agreed, then an interim application can be made to the court. Generally, there will be early attempts for written or face-to-face negotiations, often using formal mediation. If this is not successful and a claim does reach court, the costs can quickly mount for all parties. It is always essential to keep a careful eye on the time limit for bringing a claim, which often requires court proceedings to be issued to protect the claimant's position.
What is the executor’s role in Inheritance Act claims?
The executor owes a fiduciary duty to all beneficiaries of the estate, whoever they turn out to be, and so are expected to maintain neutrality in any Inheritance Act claims. They should not ‘actively defend’ any claims brought; this is the role of the main beneficiaries. So long as the executor remains impartial, they will generally be able to recover any costs related to the matter out of the estate. However, if they take a partisan approach or unnecessarily incur costs in defending the claim, they could be personally liable for their own costs, and even those of the claimant.
Where the executor is also a beneficiary to the estate, costs incurred in defending a claim will generally not be paid out of the estate.
In the rare circumstances where the executor is also the claimant, stepping down as executor is a prudent option (although not a mandatory requirement). This is due to the conflict between their interests as a claimant and the interests of the estate, in that they may have to sue themselves.