I have not been provided for in a Will but feel I should have been. What can I do?
You may be able to bring a claim against the person’s estate. This will essentially seek that there is a redistribution of the estate funds on the basis you ought to have been provided for. A court can assess whether you should receive ‘reasonable financial provision’ from the estate.
Calculation of reasonable financial provision will depend on all the circumstances, such as what capital and assets are held by the estate, your financial situation and the financial situation of other beneficiaries.
Does the same apply where a Will was not left?
Yes, a claim can also potentially be made in those circumstances. If a person dies without a will, their estate will pass under the intestacy rules. If that results in you not benefitting from the estate, but you reasonably ought to, a claim on the same basis can potentially be made.
What is an estate?
A person’s estate is the money and property owned by them. The value of an estate is calculated by adding up the total value of any assets owned by them (either wholly or partly) at the time of their death, such as money, property, shares, items or anything else of monetary worth. Once this has been done, any debts or other financial liabilities, funeral costs and the costs of administering the estate are then deducted. What is left is known as the net estate.
Who can claim?
There are certain categories of person who may bring a claim against an estate. They are:
- A wife, husband or civil partner of the deceased;
- A former wife, husband or civil partner of the deceased who did not remarry after they divorced from the deceased;
- A child of the deceased (including adopted children) 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, such as money for bills or to buy food;
- A person who lived with the deceased as though they were a spouse or civil partner for at least 2 years immediately before their death.
What if the Will was made before circumstances changed?
There may be a good reason why a person was left out of a Will at the time of it being prepared, but that reason did not then apply at the time of death. As examples, a person may not have been in contact with that person for some time or they may be financially independent, however those circumstances may change following the Will being prepared. In those circumstances, arguments can be raised that those left out should receive reasonable financial provision from the estate.
How long do I have to raise the issue?
You must issue court proceedings within 6 months of the date of the Grant of Probate or Letters of Administration. If you are unsure whether a Grant of Probate or Letters of Administration have been issued, you can use the government’s online service here
It is important to note that the issuing of court proceedings is the submission of a claim to a court, not the provision of a letter of claim.
As with all types of litigation, court proceedings should be a last resort. Cases such as this are often more difficult given parties are often grieving for their loved ones. Therefore, if you intend to claim then we suggest having early and amicable discussions with those dealing with the estate, setting out how a lack of provision may affect you. During such discussions you can assess whether the provision you seek can be agreed voluntarily.
You may also wish to obtain legal advice. That can assist in ensuring any proposed settlements are appropriate, and in the event no settlement offers are forthcoming. Mediation should also be considered if relations between the parties are strained.
What is a Grant of Probate and Letters of Administration?
These are court documents which confirm that an individual has the right to administer an estate. If the deceased had a Will, a Grant of Probate will be issued to a named executor in said Will upon completion of a probate application, which involves collecting full details of the deceased’s estate and calculating any tax liabilities (e.g. Inheritance tax). If they passed away without a Will, the application will generally be completed by a next of kin and rather than a Grant of Probate, they will receive Letters of Administration.
Will it be a long process if I decide to take legal action?
Often, these matters settle through negotiation, in which case the process will be considerably shorter than if it went all the way to court. It is difficult to estimate how long the court process will take, but fully contested cases can take at least six months, and sometimes much longer.