There has been much media attention that focuses on cases where adult children have been left little or nothing in a parent’s Will and have sought to challenge this. Series such as ‘The Inheritance’ delve into the family infighting that can occur upon a person’s death.
It is no secret that family relationships can be immensely complicated. Shakespeare wrote in King Lear, “How sharper than a serpent’s tooth it is to have a thankless child”.
However, no matter how bitter the fall out, the truth is that there is nothing to stop a person making a Will that is particularly capricious or downright spiteful.
In light of this, the question many will ask is what can I do if I have been left out of a Will or left a small percentage of an estate? What can I do if I wish to challenge a Will?
The Inheritance Act 1975 (Provision for Family and Dependants) Act 1975 (“the Act”) provides a method whereby a will can be challenged on the grounds that reasonable financial provision has not been made. This should not be confused with whether the person making the will was acting unreasonably.
In this article I will provide a brief overview of the initial steps to take if you wish to challenge a Will on the ground that reasonable financial provision has not been made to you. Nothing in this article should be used as a substitute for proper legal advice.
- What is reasonable financial provision?
The question of what constitutes reasonable financial provision depends on a number of factors, such as to what, if any, extent you were financially dependent on the deceased and your relationship to the deceased. The court will expect you to show that you require the reasonable financial provision. The Inheritance Act does not exist simply to give a capital lump sum to anyone making a claim, the court’s starting point is quite the opposite.
2. Who is eligible to bring a claim?
Section 1 of the Act lists those who can bring a claim which includes:
a) the spouse or civil partner of the deceased;
b) former spouse or former civil partner of the deceased, but not one who has formed a subsequent marriage or civil partnership;
c) a child of the deceased;
d) any person (not being a child of the deceased) who in relation to any marriage or civil partnership to which the deceased was at any time a party, or otherwise in relation to any family in which the deceased at any time stood in the role of a parent, was treated by the deceased as a child of the family;
e) any person (not being a person included in the foregoing paragraphs of this subsection) who immediately before the death of the deceased was being maintained, either wholly or partly, by the deceased.
3. How long do you have to bring a claim?
You have just six months from the grant of probate being issued to make a claim for reasonable financial provision from an estate pursuant to the Act. Most people are unaware of this short timeframe for making a claim, especially given that the months immediately following the death of a relative are usually somewhat chaotic. The court will consider applications that are made out of time, however you must have a very good reason for delaying the application and evidence of a strong claim against the estate.
4. Factors the court will consider when deciding your case
When deciding whether you should be granted reasonable financial provision from an estate, the court will make an assessment of any award based on the following criteria, set out in Section 3 (1) of the Act:
a) the financial resources and financial needs which the applicant has or is likely to have in the foreseeable future;
b) the financial resources and financial needs which any other applicant for an order under section 2 of this Act has or is likely to have in the foreseeable future;
c) the financial resources and financial needs which any beneficiary of the estate of the deceased has or is likely to have in the foreseeable future;
d) any obligations and responsibilities which the deceased had towards any applicant for an order under the said section 2 or towards any beneficiary of the estate of the deceased;
e) the size and nature of the net estate of the deceased;
f) any physical or mental disability of any applicant for an order under the said section 2 or any beneficiary of the estate of the deceased;
g) any other matter, including the conduct of the applicant or any other person, which in the circumstances of the case the court may consider relevant.
5. Is court the only option?
Court action should always be the last resort once all other avenues are exhausted. Litigation is prohibitively expensive and even larger estates can be whittled down to nothing through a drawn out court battle.
Whilst a formal court application may be the only option if the parties cannot come to an agreement, parties are encouraged to resolve the claim by way of alternative dispute resolution (ADR). The most common form of ADR in estate disputes is mediation.
Mediation is a process that is far less formal than court proceedings. Parties will agree a bundle of documents and exchange mediation position statements in advance of a day of negotiations either in person or virtually.
Unlike a court hearing where a judge will make a decision on the matter which his binding, at mediation the parties are only bound by what they agree on the day if they sign a formal settlement agreement.
How can Blaser Mills Law’s Private Wealth Disputes Team help?
At Blaser Mills we understand the stress caused by being inadequately catered for in a Will and are here to help. If you would like to discuss instructing us to act for you, please call us on 01494 788 998 and ask to speak to the Private Wealth Disputes Team or get in touch by email at mcw@blasermills.co.uk.