Frances Jacobs of Edward Hands and Lewis
It is widely thought that in England we are free to leave our property by Will to whomsoever we choose. However, should you fail to adequately provide for those who relied on you, then some of those people may be able to claim under the Inheritance (Provision for Family and Dependants) Act 1975, if they can satisfy the legal requirements to do so.
Case law shows that courts will make provision where it is felt to be fair provided that the deceased died domiciled in England and Wales and did not make reasonable financial provision for the applicant.
Who may apply?
The application must be made within six months after the grant of probate or letters of administration and may be made by:
- Surviving spouse/civil partner, and former spouse/civil partner who has not remarried.
- Children of the deceased or those treated as children of the deceased.
- Non-family members who have been maintained by the deceased e.g. cohabitees including same sex cohabitees.
What does the court consider?
There are two questions that the court considers:
- Has the Will made reasonable financial provision for the claimant? If no, then
- Should the court exercise its own wide powers to make financial provision for the claimant and, if so, to what extent?
The court will have regard to the financial resources and financial needs which the applicant has or is likely to have in the foreseeable future, as well as other factors such as the size and nature of the net estate of the deceased and any physical or mental disability of any applicant for an order.
What you should do
If you are making a Will, consider whether you have provided for those who could make a claim under the Inheritance Act.
If you feel that you may have a claim against an estate yourself, give us a call for a free of charge consultation.
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