Dependants

    There are several ways to contest a will and in view of the time limits for bringing a claim.  Whether  you wish to bring a claim or believe that claims may be made we strongly urge you to seek advice at an early stage

    Under the Inheritance (Provision for Family and Dependants) Act 1975 the court has power to vary the Will to award amounts that it considers fair if a Will leaves less than expected for some categories of people.

    In some cases the amount ordered will be for the maintenance of the person and in the case of spouses and partners it will be the amount that the court decides is reasonable in all the circumstances and not limited as for others.

    The factors to be considered by the court when deciding what a person may receive includes:

    • the size of the estate
    • whether any other person is bringing an inheritance act claim
    • the resources and needs of the actual beneficiaries of the estate
    • any obligations the deceased may have had towards that person
    • any physical or mental disability the person claiming may have
    • the claimant’s financial needs and resources
    • any other matter, including any conduct which may be relevant

    The people eligible to apply are:

    • The spouses/civil partner of the deceased.
    • The ex-spouses/civil partner of the deceased (as long as they have not remarried or any previous divorce settlement prevents from making a claim).
    • Anyone living with the deceased in the two years immediately before their death as their husband or wife.
    • A child of the deceased (either biological or adopted), or someone treated as a child of the deceased (e.g. a step child). Even adult children can apply if they are not financially independent.
    • Someone being maintained by the deceased immediately before their death. The definition of being maintained is fairly wide and can include the deceased paying or even just contributing to mortgage/rent, paying off debts, paying for school fees or providing someone with a regular income. Anyone who was living the deceased prior to their death for less than 2 years may still be able to qualify under this section.

    However it should be borne in mind that there may be a reasonable basis for the deceased not to have provided for them in their Will, or made only limited provision.

    Each claim will depend on its own facts so each claim has to be assessed and this should take place quickly as claims should be started within 6 months of death.

    When assessing what someone is likely to receive from an Inheritance Act, it depends on who is making the claim. For anyone other than a spouse or civil partner, any claim is limited to what is required for their maintenance. For spouses and civil partners, the test is higher – it is what would be reasonable for them to receive in all the circumstances not limited to maintenance.

    The Inheritance Act itself sets out a range of factors which would be considered when deciding what a person may receive, if anything. These include:

    • their own financial needs and resources
    • the size of the estate
    • whether any other person is bringing an inheritance act claim
    • the resources and needs of the actual beneficiaries of the estate
    • any obligations the deceased may have had towards that person
    • any physical or mental disability the person claiming may have
    • any other matter, including any conduct which may be relevant

    Each claim will depend on its own facts so each claim has to be assessed properly.

    Are there other types of claim?

    Because of the uncertainty around possible claims executors and beneficiaries should seek advice as soon as passible.  For example, where a Will has been changed questions may arise as to the circumstances of the change. If the testator was confused or signing under pressure and the beneficiaries under the Will are altered then investigation into the history is advisable. Early resolution will always save costs and can save parties from becoming entrenched or taking positions when the background is not fully understood by all.