Inheritance (Provision for Family and Dependants) Act 1975

If you find yourself being cut off from the last will of your deceased relative, spouse or partner, you may be able to make a claim on the deceased’s estate under the Inheritance (Provision for Family and Dependants) Act 1975.

Even in the absence of a will, you may still be able to make a claim under the Inheritance Act 1975 on your deceased relative, spouse or partner’s estate – the deceased’s possession, money and property.

Under the Inheritance Act 1975, regardless of whether there is a will or not, you can file a claim on the deceased’s estate if you are one of the following:

-Surviving spouse or civil partner of the deceased;

-Former husband or wife of the deceased and you have not remarried or you have not given up your claim when you got divorced;

-Child of the deceased;

-Partner who cohabitated with the deceased during the whole two-year period before the deceased’s death;

-Person treated by the deceased as a child; or

-Person who was wholly or partly maintained by the deceased immediately before his or her death.

 

Reasonable Financial Provision

 Under the 1975 Act, you can claim for “reasonable financial provision”. This reasonable financial provision, under the law, means one that is “reasonable in all the circumstances of the case for the applicant to receive for his maintenance.”

But who decides what is reasonable or not reasonable in all circumstances? The court actually determines whether a financial provision is reasonable or not reasonable in all circumstances.

Under the 1975 Act, in determining what a reasonable financial provision is, the court takes into consideration the following factors:

-Financial needs of the applicant in the foreseeable future;

-Size and nature of the net estate of the deceased;

-Mental and physical disability of the applicant;

-Age of the applicant;

-Duration of the marriage or civil partnership;

-Contribution of the applicant (including looking after the home or caring for the family) towards the welfare of the deceased’s family;

-In the case of a person who was maintained by the deceased immediately before his or her death, the extent and the length of time to which the deceased assumed that responsibility will be taken into account;

-Applicant’s earning capacity;

-Applicant’s financial obligations and responsibilities; and

-Other matter, including the conduct of the applicant or any person which the court may consider as relevant.

 

Ilott v Mitson

In the case of Ilott v Mitson, an estranged daughter filed a claim under Inheritance Act 1975 on her deceased mother’s estate. The estranged daughter was cut off from her mother’s will and the entire estate was given to three charitable institutions.

The claimant daughter left home in her late teens, married a man and had five children with him. The claimant has no job since the birth of her oldest child, while her husband’s income is small. The family lives in a housing association house and they are heavily dependent on state benefits.

The daughter claimed that the will did not make reasonable financial provision for her. The judge on the case found that the will indeed did not make provision on the daughter and decided to award the daughter a lump sum amount of £50,000 out of the nearly £489,000 estate. Cross appeals followed after the judge’s decision.

On appeal to the High Court of Justice, Family Division, the daughter claimed that the lump sum amount awarded by the lower court judge did not in reality provide any benefit to her as the amount does not provide long-term provision for her future. The daughter sought an award equivalent to half the value of the estate (about £240,000) in order for her and her family to re-house in a three-bedroom property.

Justice Parker of the High Court of Justice, Family Division in her March 2014 ruling said that reasonable financial provision does not mean an award that improves the circumstance of the claimant.

Justice Parker, in her ruling specifically said, “I cannot say that the judge was manifestly wrong, or even wrong, in taking the view that notwithstanding that the Claimant and her husband and family lived in straightened circumstances, the fact they had done so for so many years did not justify an award which improved their circumstances.”

With the 1975 Act, therefore, even if you are totally cut off from the will of your relative, spouse or partner, you can still claim reasonable financial provision on the deceased’s estate. In the absence of a will, you can also claim for reasonable financial provision.

How to file a claim under Inheritance Act 1975?

You have within six months from the grant of representation to file your claim. The court, in some cases, may allow a claim application beyond this period.

A grant of representation gives a person a legal right to collect the assets of the deceased, pay any debts and distribute the estate to the beneficiaries. If there is a will, the solicitor or solicitors named under the will may apply for a grant of representation. In the absence of a will, the deceased’s next of kin such as the spouse, civil partner or children may apply for a grant of representation.

Filing a claim for reasonable financial provision under the 1975 Act is a complicated matter. There is a danger that the court will not agree with your claim. There is also a possibility of paying a large bill if the court rejects your claim or the court will not allow that the legal cost of the claim should be paid out from the estate. As filing a claim is a complicated matter, there is a need to seek professional help.

If you believe that you have a rightful claim against a deceased’s estate, contact the solicitors at HH Legal.

HH Legal is a specialist firm of solicitors offering expert advice on a range of complicated legal areas, including contested probate, bullying and harassment and contract law.

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