Frequently Asked Questions

What is the Inheritance (Provision for Family and Dependants) Act 1975?

The Inheritance (Provision for Family and Dependants Act) 1975 (the Act) enables certain categories of persons to make a claim against an estate provided they can show that they were financially dependent on the deceased and that the deceased did not make adequate or any provision for them in their Will. Any claim under the Act must be made within six months of the issue of the Grant of Probate. However, there are exceptions to this strict time limit, and permission from the court is required to extend this time limit. The longer you leave it to make a claim, the more difficult it becomes to present a claim. Do not delay if you think you have a claim.

How do I know if I am eligible to make a claim under this?
The following categories of persons are eligible to make a claim under the Act:
• A current spouse or civil partner of the deceased;
• A former spouse or civil partner of the deceased who has not remarried and who has not received a final financial settlement following the breakdown of the marriage or civil partnership;
• Any person who, during the whole two year period immediately before the date of death, was living in the same household as the deceased in the manner of a spouse or civil partner;
• Any child of the deceased including illegitimate, legitimated and adopted children of any age;
• Any person treated by the deceased as a child of the marriage or civil partnership;
• Any person not included above who was maintained wholly or partly by the deceased immediately before his death otherwise than for valuable consideration. The requirement of ‘no consideration’ excludes paid domestic staff from having a claim under the Act.

 

What factors does a court take into account in a claim under the Inheritance (Provision for Family and Dependants) Act 1975?
Under Section 3 of the Act, the court will take into account the following factors when deciding whether a reasonable financial provision has been granted for a claimant:
a) the financial resources and needs of the applicant;
b) the financial resources and needs of any other applicant;
c) the financial resources and needs of the beneficiaries;
d) any obligations and responsibilities of the deceased towards any applicant and any beneficiary;
e) the size and nature of the estate of the deceased;
f) any physical or mental disability of any applicant or beneficiary;
g) any other matter, including conduct, which the court may consider relevant.
In relation to an application by a surviving spouse, the court is also required to consider:
a) The age of the applicant and duration of the marriage;
b) The contribution made by the applicant to the welfare of the family of the deceased, including any contribution made by looking after the home or caring for the family.

My spouse or partner has not provided for me in their Will – is there anything I can do?

We are finding that many clients approaching us, have not been named in a Will, but are still eligible to claim. The recent court case of Ilott v Mitson has highlighted the fact, that even if a person has been specifically excluded from benefiting under a Will, then that excluded person may not only bring a claim, but also, be awarded an amount out of the estate.
As a spouse or partner of the deceased (providing you were living in the same household as the deceased in the two year period immediately before his death) you would be eligible to make a claim under the Inheritance (Provision for Family and Dependants) Act 1975.

Spouses and civil partners are entitled to such provision as it would be reasonable in all the circumstances for them to receive (whether or not that provision is required for their maintenance). Amongst other factors, the court will consider the age of the applicant and the length of the marriage, the applicant’s contribution to the welfare of the deceased’s family and the provision which the applicant might reasonably have expected to have received if, instead of the marriage being terminated by death, the marriage had instead been terminated by divorce.

 My parents not provided for me in their Will – is there anything I can do?
As a child of the deceased you would be eligible to make a claim under the Inheritance (Provision for Family and Dependants) Act 1975. A child for the purposes of the act includes an adult child.

The claim is limited to such provision as would be reasonable in all the circumstances for the applicant to receive for his or her maintenance. This would mean, taking into consideration, income, size of the estate, and future needs. The fact that you are estranged from your mother or father would not affect your eligibility to make a claim against their Will under the Inheritance (Provision for Family and Dependants) Act 1975. Your estrangement will however almost certainly be taken into account by the Court in assessing the strength of your claim. As mentioned, the recent case of Illott v Mitson has highlighted that being estranged from one or both parents, does not preclude you from not only claiming, but being awarded an amount of money.

My spouse or partner has just passed away and did not get round to making a Will – what will I be entitled to? Can I bring a claim under the Inheritance (Provision for Family and Dependents) Act 1975?

When somebody dies without a valid Will in place, they are said to die ‘intestate’ and their estate will pass to members of the family accord to order of entitlement.

If you are married to your partner and you have children, you will receive all of his or her personal effects and the sum of £250,000 (subject to it being available). The remainder of his or her estate will be divided into two equal shares. You will receive the income from one of the shares for the rest of your life, with the capital being preserved for your children after your death. The other share will pass to your children in equal shares.

If you are married without children and your spouse is survived by either or both of their parents or whole blood siblings, you will receive all of his or her personal effects and the sum of £450,000. As above, the remainder of his or her estate will be divided into two equal shares but this time you will receive one share absolutely. The other share will pass to your spouse’s parents in equal shares if they are still alive, failing which to your spouse’s siblings in equal shares.

If you are married without children and your spouse is not survived by either or both of his/her parents or whole blood siblings, you will receive the entire estate outright.

If you are not married to your partner, you will not automatically be entitled to anything at all, and will have to consider bringing a claim under the Inheritance (Provision for Family and Dependants) Act 1975 if you believe that insufficient provision or no reasonable provision has been made for you under the Intestacy Rules.

How Much Will I Receive?

One of the the most frequently asked questions.  This depends to a great extent, as to the size of the estate.  If an estate is worth £50,000, and you are wanting to claim £250,000, then there is little point is pursuing a claim with that expectation, as there will be no one else to claim a shortfall from.