The last Will and Testament of a person is not always ‘the final word’ on how their assets are shared out. Although English law gives everyone the freedom to leave their wealth to whomever they choose; there are instances in which their decision may be overruled.
The Inheritance (Provision for Family and Dependants) Act 1975 was introduced to help those who were wrongly left out of a Will, or whose inheritance was not adequate to provide for them, or when a person close to them has died without making a Will.
The 1975 Act only applies when the person who has died was living in England or Wales. The legislation has strict criteria regarding the category of people (“applicants”) who can apply to the court for provision.
Who can seek help?
People who are entitled to claim under the 1975 Act include:
1. The spouse or civil partner of the deceased
2. A former spouse or former civil partner of the deceased who has not remarried or formed a new civil partnership
3. A person living in the same household as the husband or wife of the deceased for the whole of the two years before the deceased’s death
4. A person living in the same household as the civil partner of the deceased for the whole of the two years before the deceased’s death
5. A child of the deceased
6. Any person treated as a child of the family by the deceased in relation to a marriage or civil partnership
7. Any person being maintained by the deceased immediately before their death
Making a claim
To make a successful claim against the estate of the deceased, an applicant must satisfy the court that reasonable financial provision has not been made for them.
This might sound simple, but it can often be difficult to quantify what “reasonable financial provision” means. The needs of each applicant depend on how they are related to the deceased and their own personal circumstances.
The court’s decision
The court weighs up a range of factors to decide whether reasonable provision has been made for an applicant – and, if not, what further award should be made. Some of the common considerations are:
1. An applicant’s future financial needs and resources (including earning capacity)
2. The future financial needs and resources (including earning capacity) of any applicant or beneficiary
3. The deceased’s obligations and responsibilities towards any applicant or beneficiary
4. The size and nature of the deceased’s net estate
5. The physical and/or mental condition of the applicant or any beneficiary
6. Any other matter the court considers relevant (including the conduct of any party)
If the applicant is the spouse, or former spouse, of the deceased, the court will also consider how long the marriage lasted.
If the applicant is the child of the deceased, the court will look at the extent to which the deceased was responsible for their maintenance.
An independent, adult child is less likely to be successful than an adult child with physical or mental difficulties who was looked after by the deceased.
When is a Will ‘unreasonable’?
When an applicant contests a will, the court will examine the deceased’s reasons for attributing their wealth and assets in the way set out in their Will.
If the deceased has given an express motive for excluding a person, or limiting their provision, this will be considered in the context of all the circumstances of the case. The court may well conclude that the argument given by the deceased is ‘unreasonable’.
Act fast to seek advice
If someone close to you has passed away and their Will doesn’t provide for you as it should, seek advice immediately. There are strict time limits for making an application under the 1975 Act. Alternatively, if you are considering making a Will, it’s important to take legal advice on how to draft it to avoid claims being made against your estate.