There is a common misconception that people close to a deceased have an automatic right to benefit from their estate. In fact, there is no automatic right and individuals can leave their estate to whomever they would like when contemplating the terms of their Will.
Despite this, there are occasions where adequate provision has not been put in place by the deceased for those whom reasonably ought to have been provided for. This can be the case where a Will is left but inadequate provision is left for cohabitees or dependants, or where no Will is left, and the deceased’s estate simply passes to the next of kin under the intestacy rules.
In cases where provision ought to have been made but has not, the Inheritance (Provision for Family and Dependants) Act 1975 can allow certain classes of individuals to make a claim for provision from the estate.
Who can make a claim against an estate?
Only certain classes of individual are able claim against an estate under the Act, with those being:-
- A spouse or civil partner of the deceased;
- A former spouse or civil partner of the deceased who has not subsequently remarried;
- A child of the deceased or somebody who was treated as a child of the deceased prior to their death (e.g. foster child, stepchild);
- Somebody who was wholly or partly being maintained by the deceased financially;
- A cohabitee who lived with the deceased as though they were a spouse or civil partner for at least 2 years immediately before their death.
Is there a time limit to bring a claim under IPFDA?
Yes. Any person who wishes to make a claim against an estate must do so within 6 months of the date of grant of probate (or letters of administration if the deceased died without leaving a Will). The court can allow claims outside of the time limit, but only in exceptional circumstances.
What will the court consider when assessing a claim?
There is no set amount for a claimant under the Act to receive if they are successful. Rather, it is “such financial provision as it would be reasonable in all the circumstances of the case for the applicant to receive for his maintenance.”
The court will consider several factors, including:
- The size of the deceased’s estate;
- The financial situation of the person bringing the claim, meaning whether they are in financial need now or likely to be in financial need in the future;
- Any obligations or responsibilities that the deceased may have had towards the claimant, such as any money provided for their maintenance; and
- Any physical or mental disability that the claimant may have.
Courts will also consider all surrounding factors, such as the position of other beneficiaries and claimants, and assess whether the claimant is entitled to a share of the estate. In doing so, a determination will be made as to how much (if anything) the claimant should receive.
What can I do if I believe I ought to have been left provision?
Given the strict timescales, you will need to move quickly. Six months from the date of the grant of probate (or letters of administration) may seem plenty of time but there is an onus on parties to resolve matters amicably, if possible, and often that can be tricky as these cases can be complex (both legally and generally, given the unfortunate circumstances). We would urge prospective claimants to obtain legal advice as soon as possible.
What can I do if I am an executor of an estate against which a claim is being made?
If you are an executor and an individual is looking to bring a claim against the estate, it is important you do not distribute the estate (except for liabilities) until such claims are resolved. Again, we urge executors to obtain legal advice as soon as possible. It is important to understand whether claims advanced are genuine and, if so, you need to be clear on what forms part of an estate and what passes outside of it. Advice can be taken on how to potentially resolve any claims efficiently and, hopefully, without the need for very costly and time consuming court proceedings.