Losing a loved one is difficult, and it can be very difficult to learn that you have not been left as much in the Will as you would have expected, or as much as you may need. It is particularly distressing if you are left to deal with matters on your own with a reduced income or the prospect of losing your home.
This situation most commonly seems to arise when partners are unmarried, and no Will is made so you receive nothing under Intestacy rules, or perhaps an old Will gives provision to children from a previous relationship, but not to the current partner. However, there are many other situations where you may feel you have not been left a fair inheritance or that you are financially in need now that person has died. Discrepancies in inheritance left to siblings can also be problematic.
Although not straightforward, it can be possible to raise a challenge to the Will (or Intestacy rules if there is no Will) and ask the Court to make a decision on whether you have been left ‘reasonable financial provision’.
Who Can Challenge?
Using the Inheritance (Provision for Family and Dependents) Act 1975, only certain categories of people can raise a challenge to their inheritance:-
- The spouse or civil partner of the deceased. They are entitled to such provision as it would be reasonable in all the circumstances for them to receive, whether or not it is required for their maintenance. Spouses and civil partners are given special consideration here, as other people have to show that the sum is required for their ongoing maintenance.
- The former spouse or civil partner of the deceased (who has not remarried or entered into another civil partnership);
- A child of the deceased;
- Any person who was treated by the deceased as a child of the family, ie a step-child;
- A cohabitee who had been living as a partner of the deceased for at least 2 years before their death;
- A person who immediately before the death of the deceased was financially dependent on the deceased.
How is a Claim Proven?
If you fall into one or more of these categories, work must then be done to prove that reasonable financial provision has not been left to you, and to calculate what would have been a reasonable inheritance to leave.
In deciding these factors the Court will look at the following:-
- The value and nature of the estate. For example, the main asset may be a property that you live in, but you have been told that you need to leave as the house has been inherited by someone else. Also, if there is a large estate, it may be reasonable to share it between more people than was originally set out in the Will.
- Your financial needs and requirements, both now and in the foreseeable future;
- The financial needs and resources of anyone else challenging the Will or anyone else who is a beneficiary of the Will. In other words, who is in the greatest need?
- Any obligations and responsibilities that the deceased had towards any applicant or any beneficiary of the estate. For example, did they support you financially and were you dependent upon them? Was anybody else?
- If married or civil partners, the Court will look at what the spouse would have been likely to receive had there been a divorce rather than a death, and base a settlement around that.
- Any physical or mental disability of any applicant or beneficiary. This will likely have a strong influence on any decision to redistribute the estate.
- Any other factors. For example, if you are the child of the deceased but the relationship was not good and you have not seen them for many years, this will be taken into account.
Practicalities of Raising a Claim
There is a strict time limit for bringing a claim under the Inheritance (Provision for Family and Dependents) Act 1975. Court proceedings must be issued within 6 months of the Grant of Probate being obtained. Therefore, if you have concerns about your inheritance, you should seek legal advice as soon as possible.
That said, Court proceedings are not always necessary. If you have a good claim, and the other parties to the Will are reasonable then it is often possible to negotiate a settlement without the need for the Court to become involved. If time permits, Alternative Dispute Resolution should be explored to see if an agreement is possible without the need for litigation.
Should you believe a Will is incorrect and has been created without mental capacity, under undue influence or by fraud, then a different approach is required and you should seek legal advice on how to proceed.
Gareth specialises in Civil Litigation and Dispute Resolution, and can assist where such problems have arisen. He can be contacted at email@example.com or on 01702 348 384.
To minimise the risk of such problems arising, Frances White can offer Will writing services to ensure your Will is up to date. She can be contacted at firstname.lastname@example.org or on 01702 348 384.
Nothing in this publication should be regarded by any person as advice or in the nature of advice: it should not be relied on; and the author assumes no liability whatsoever to any person.