Claims under the Inheritance (Provision for Family and Dependants) Act 1975

If you have not received reasonable financial provision from someone’s estate, whether they left a will or died without one, you may be able to bring a claim under the Inheritance (Provision for Family and Dependants) Act 1975.

Testamentary freedom is ingrained in UK culture and is considered an important personal freedom. No forced inheritance rules apply in contrast to most European countries.

However, the Inheritance (Provisions for Family and Dependants) Act 1975 (‘the Inheritance Act’) does significantly erode testamentary freedom. The courts have a wide discretion to redistribute assets to produce a fair result where they believe an individual has failed to make reasonable financial provision for their relatives or dependants.

This does not mean that someone can challenge a will simply because they are disappointed with what they have inherited. The court will consider the individual circumstances of the claimant, the estate and the beneficiaries before deciding whether an award should be made.

Who can make an Inheritance Act claim?

The Act allows claims by certain categories of people, including:

• a spouse or civil partner of the deceased;
• in some circumstances, a former spouse or civil partner who has not remarried;
• a partner who lived with the deceased as a couple for at least two years immediately before their death;
• a child of the deceased, including an adult child;
• someone treated by the deceased as a child of the family; and
• someone who was financially maintained by the deceased immediately before their death.

However, being eligible to make a claim does not automatically mean that the claim will succeed.

What is “reasonable financial provision”?

Different rules apply depending on the type of claimant and their relationship with the deceased. The court has wide powers when deciding what, if any, provision should be made.

For a surviving spouse or civil partner, the court can consider what financial provision would be reasonable in all the circumstances, whether or not that provision is required for maintenance.

For most other categories of claimant, the court’s assessment is generally limited to what would be reasonable for that person’s maintenance.

What will the court consider?

When deciding whether reasonable financial provision has been made, the court considers a range of factors, including:

• the claimant’s income, assets and financial needs;
• the financial needs of any other claimants;
• the financial needs of the beneficiaries;
• the size and nature of the estate;
• any responsibilities the deceased had towards the claimant or beneficiaries;
• any disability affecting the claimant or another beneficiary; and
• any other relevant circumstances.

The court may also take into account the conduct of those involved where it considers that conduct to be relevant to the circumstances of the case.

What orders can the court make?

If the court concludes that reasonable financial provision has not been made, it has wide discretion to make orders designed to achieve a fair outcome.

Depending on the circumstances, such orders can include the payment of a lump sum, ongoing maintenance payments, the transfer of property, or other financial arrangements affecting the estate.

Is there a time limit for an Inheritance Act claim?

A claim should generally be brought within six months of the date of the Grant of Representation, whether that is a Grant of Probate or Letters of Administration.

The court has the power to allow claims outside that period, but permission should never be assumed and the time limit is treated seriously.

Anyone considering a claim should seek legal advice as soon as possible.

Can an Inheritance Act claim be settled?

Many inheritance disputes are resolved through negotiation or mediation without the need for a trial.

Early settlement can help reduce costs, delay and the emotional impact often associated with disputes involving family members and estates.

However, parties should remember that settlement discussions do not automatically protect the six-month limitation period and advice should be taken about preserving a claim while negotiations continue.

What should executors and beneficiaries do if a claim is made?

Executors should remain neutral and exercise caution before distributing an estate where a claim has been made or is anticipated.

Obtaining specialist advice at an early stage can help protect both the estate and the executor’s position.

Beneficiaries whose inheritance may be affected by a claim should also consider obtaining independent legal advice, particularly where their own financial circumstances may become relevant to the court’s assessment.

Who pays the legal costs?

It is a common misconception that the estate will automatically pay everyone’s legal costs in an inheritance dispute.

That is not necessarily the case. There can be significant financial consequences for both bringing and defending a claim, and the issue of costs should always be considered at an early stage.

The potential costs of litigation are one reason why many parties choose to explore settlement or mediation wherever appropriate.

Conclusion

Claims under the Inheritance Act have become increasingly common and the courts continue to exercise a broad discretion when deciding what amounts to reasonable financial provision.

Whether you are considering bringing or defending a claim, acting as an executor or affected by a dispute as a beneficiary, obtaining specialist advice at an early stage can be crucial, particularly given the strict time limits that apply.

For help and advice, contact our dispute resolution team on 0116 289 7000 or email info@bhwsolicitors.com.