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The Inheritance (Provision for Family & Dependants) Act 1975

What is the purpose of this Act?

The usual position is that a person can leave their assets to whomever they wish in their Will. If they have not made a valid Will, the Intestacy Rules set out how their assets will be distributed.

However, the Inheritance (Provision for Family and Dependants) Act 1975 allows the Court to vary the effect of the Will or Intestacy Rules in certain circumstances after the person’s death.

Who can claim under the Act?

  • People who are eligible to claim are those who fall into one of the following categories:-

  • the spouse or civil partner of the person who has died (“the Deceased”);

  • a former spouse or civil partner of the Deceased - provided that they have not married again or formed another civil partnership;

  • a partner who had lived with the Deceased as their spouse or civil partner (without being married to them or in a civil partnership with them) for a period of two years before the date of death; 

  • a child of the Deceased;

  • any person who was treated as a child of the marriage or civil partnership (for example a step-child); 

  • any person who was wholly or partly maintained by the Deceased immediately before the date of death.

When assessing a claim by a spouse or civil partner - or in some specific cases a former spouse or civil partner - the Court considers what financial provision it would be reasonable for them to receive in the circumstances, whether or not they actually need it for their maintenance.

In all other cases the Court considers what provision would be reasonable for the claimant to receive for their maintenance. Therefore, if they do not need maintenance, the Court will not make any provision for them.

How does the Court assess the claim?

In assessing a claim, the Court takes into account a number of general factors:-

  • the financial resources and needs that all claimants and all beneficiaries under the Will/Intestacy Rules have or are likely to have in the foreseeable future;

  • any obligations and responsibilities that the Deceased had to any claimant or beneficiary;

  • the size and nature of the Deceased’s net estate;

  • any physical or mental disability of any claimant or beneficiary; and

  • any other matter - including the conduct of the claimant or anyone else – that the Court considers relevant.

The Court also looks at factors relating to particular types of claimant. For example, in the case of a spouse or civil partner, the Court takes into account the age of the claimant and the duration of the marriage or civil partnership, as well as the contribution made by the claimant to the welfare of the Deceased’s family, and will also have regard to what the claimant would have received in the event of a divorce or dissolution.

What orders can the Court make?

If the Court is satisfied that reasonable financial provision has not been made for the claimant under the Will/Intestacy Rules, it has the power to make various orders, including:-

  • the transfer of property to the claimant;

  • the payment of a lump sum of money out of the Deceased’s estate; and 

  • the making of periodical payments by the estate for a certain period of time.

If the claimant urgently needs financial assistance the Court can order interim payments pending the outcome of the Court proceedings.

How quickly should the claim be made?

The claim must be made to the Court within six months of the Grant of Probate (or Letters of Administration in the case of an intestacy) being obtained. The Court can waive this deadline in exceptional circumstances, but this should not be relied upon.

Who pays the costs of the claim?

The general rule is that the unsuccessful party pays a proportion of the successful party’s costs. Therefore, it is important for all parties to any claim under the Act to consider the merits of the claim at an early stage.

This is a summary of the legal position. If you would like further information please contact Claire Haverfield, a Partner in the Dispute Resolution team, by calling 023 8071 6142 or email her here.

 

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