Who is allowed to claim against a Will?
It can be a shock to find that you have not been included in someone’s Will. You may have expected to inherit from them or you were being supported by them previously. In some situations, you may be able to make a claim if you have been left out of a Will. Or in the case where you have received a small sum that is not enough to support you. We look at who can claim against a Will and what is taken into account.
If a loved one has died and you have found out that you are not due to receive anything under the terms of their Will or, if they did not leave a Will, under the Rules of Intestacy, you may be in financial difficulty.
The Inheritance (Provision for Family and Dependants) Act 1975 (the Act) allows certain individuals to make a legal claim against someone’s estate. This is in the case that they have not been sufficiently provided for.
Increase in claims
There has been a steady increase in claims being brought under the Act. Potentially due to more complex family situations as well as errors made by individuals who have drafted their own Wills.
If you have a blended family or you have remarried, it is particularly important to make sure you have the right Will in place. Similarly, if you are cohabiting, you must have a Will if you want to ensure that your partner inherits. Without a Will they will receive nothing from your estate.
Inheritance (Provision for Family and Dependants) Act 1975 claims
A spouse, child or cohabiting partner of the deceased or a financial dependent can make a claim under the Act. As a result of them not being left anything under the terms of the deceased’s Will. Those entitled to claim are:
- A spouse or civil partner
- A former spouse or civil partner, provided that they have not married or entered into a civil partnership
- A child of the deceased, including an adopted child
- Anyone the deceased treated as their child, for example, a step-child
- A cohabiting partner who had lived with the deceased for at least two years before their death
- Anyone being financially supported by the deceased
How much can you claim under the Inheritance Act?
The Act allows most individuals to claim ‘reasonable financial provision’. In deciding how much to award someone, the court will take the following into account:
- The size of the deceased’s estate
- The applicant’s likely financial needs for the future, taking into consideration their earning capacity and other resources
- The needs of any other applicants
- The needs of the beneficiaries of the Will who might be affected by an award being made to the applicant
- The obligations of the deceased to all other parties
- The physical and mental health of applicants and beneficiaries
- Any other matters that the court believes are relevant
In respect of a spouse or civil partner, they could receive more than just reasonable financial provision. The court may decide to make an award that is similar to the amount that a spouse would receive on divorce.
What will the court order?
The court has a range of options open to it in deciding how to provide for a claimant, including:
- A lump sum
- Regular income
- Transferring property to the claimant
- Putting assets into a trust for the claimant
- Purchasing a property for use by the claimant
- Varying a pre-nuptial or post-nuptial settlement made by the deceased
Is there a deadline for making an Inheritance Act claim?
There is a strict time limit of six months from the date of the Grant of Probate or Grant of Letters of Administration in which a claim should be made. Occasionally the court may allow a claim out of time. However, where possible, you should make sure that you meet the deadline.
If you believe that you may have a valid claim, you are strongly advised to speak to a solicitor as soon as possible.
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