While a trademark of the law of succession in England and Wales is the freedom to leave your estate to whomever you wish, this freedom is not without limits. This is because the law makes 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 allows the Courts to alter the distribution of a deceased’s estate if it is found that a person’s estate does not make ‘reasonable financial provision’ for an applicant. If a claim is successful, the court can make a variety of awards, including a payment of a lump sum from the deceased’s estate or a transfer of property. The key question is what is reasonable for them to receive in all the circumstances.

The Two-Stage Test

The court is required to carry out a two-stage process to assess whether the deceased has made ‘reasonable financial provision’ for the applicant.

1. Has reasonable financial provision been made for the applicant?
2. If not, what reasonable financial provision ought to be made for him?

The court can only proceed to the second stage to determine what provision should be made if they are satisfied that reasonable financial provision has not been made.

Who can claim?

The question of reasonable financial provision differs depending on the category which the applicant falls into. Section 1 of the 1975 Act lists the people entitled to bring a claim:

• The spouse or civil partner of the deceased
• A former spouse or former civil partner of the deceased
• Any person who, for the past two years before the deceased died, was living in the same household of the deceased and as if that person and the deceased were a married couple or civil partners
• A child of the deceased
• Any person who was treated by the deceased as a child of the family
• Any person who, immediately before the death of the deceased, was being maintained by the deceased

What do the Courts consider?

Section 3 of the Act specifies certain factors which the court must consider. These include:

• The financial resources and financial needs of the applicant
• The obligations and responsibilities of the deceased person towards the parties
• The size and nature of the deceased’s estate
• Any physical or mental disabilities of the parties

In applying these factors, the Court will need to balance the competing interests of the different beneficiaries of the estate.

Time-limit

Starting from the date probate was granted, you have six months to make an Inheritance Act claim. Extensions can be applied for in exceptional circumstances.

Case Studies

While the variety of scenarios and issues that arise are infinite, common themes are found in the case studies below:

“I lived with my aunt for numerous years before she passed away. She treated me as her son, and I was financially dependent on her. She did not leave a Will and I don’t inherit anything from her estate under the rules of intestacy as I am not her child. Can I bring a claim?”

The Court considers the moral obligation placed on the deceased towards the applicant and beneficiaries. Where the deceased maintained a person before their passing, the Court will consider whether this should continue after their death on moral grounds.

Although the applicant wasn’t the child of the deceased, they will qualify under the 1975 Act as they were treated as a child of the deceased. This includes children who were adopted or fostered, a stepchild, or a child who was maintained financially in any way by the deceased.

“My husband and I lived together for three years until he passed away. He died without a Will, and I don’t know if I’m entitled to anything.”

Special consideration is provided to the applicant where s/he is the spouse or civil partner of the deceased. Walls LJ stated, “A deceased spouse who leaves a widow is entitled to bequeath his estate to whomsoever he pleases: his only statutory obligation is to make reasonable financial provision for his widow.” – Cunliffe v Fielden [2006]

Instead of considering what is required for the applicant’s maintenance, the Act takes a “reasonableness” standard, in which it is considered what is reasonable for the claimant to receive. This is defined as “…such financial provision as it would be reasonable in all the circumstances of the case for a husband or wife (which includes a surviving spouse of a same sex marriage) or civil partner to receive, whether or not that provision is required for his maintenance” at Section 2(a). In doing so, the Court would consider the age of the applicant, the duration of the marriage, and the contribution made by the applicant to the welfare of the family.

“My father and I fell out many years ago. We did not speak for several years until we mended our relationship just over a year ago. He passed away two months ago. He left a Will, but it is several years old and there is no provision for me. I am currently working part-time and struggling financially. Am I eligible to bring a claim?”

While the needs of minor children are apparent, claims for the category of adult children generally bring more difficulty. Adult children can face struggles in succeeding, as they tend to be more financially independent than minor children. Therefore, much will depend on why no, or insufficient, provision was made for them and whether that was reasonable in all the circumstances. Consideration will also be given to the Claimant’s working capacity. The Court would consider why the applicant is working part-time and whether she has the potential to secure a full-time job.

A further consideration is that the deceased made their Will many years ago when the family circumstances were different. In the 2014 case of Wright v Waters, an adult daughter had failed to seek to reconcile with her mother and her claim failed as a result. Therefore, reconciliation with her father would certainly work in this claimant’s favour.

The key would be to evidence that she is in financial need in order to succeed. The applicant will need to present her monthly income, her monthly outgoings, what assets she owns, etc. Where the applicant is not a spouse or civil partner, they are restricted to an award to meet their maintenance. Therefore, if successful, the award will be limited to cover the applicant’s needs.

How do I bring a claim under the Act?

Please enquire with the firm to discuss your matter with our experienced Litigation team on our freephone 0800 8 60 62 65, who can advise you on the merits of your potential claim or defence. While our expert negotiators will aim to settle claims out of a court, they will guide you through every step of the complex court process if it comes to it.