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Challenging a will under the Inheritance (Provision for Family and Dependents) Act 1975

There have been many examples reported in the press recently of wills being challenged by people who have been excluded from a will or feel that they have been insufficiently provided for. Such challenges are generally brought under the Inheritance (Provision for Family and Dependents) Act 1975 and are becoming more common due to increased wealth, cohabitation and second families.

However, only some of those claimants will have valid legal claims.

The Act allows certain people to make a claim on an estate if they did not receive “reasonable financial provision” in the will or under the rules of intestacy the latter of which dictate the distribution of estate assets when no will or no valid will exist.

• The parties who are eligible to make a claim on an estate are:
• Spouse or civil partner of the deceased
• Former spouse or civil partner of the deceased who has not formed a subsequent marriage or civil partnership with someone else
• Any person living with the deceased as spouse or civil partner for two years immediately prior to the death
• A child of the deceased including adopted children
• Any person (not being a child of the deceased) who was treated as a child of any family
• Any family in which the deceased at any time stood in the role of the parent including being a single parent. The family can just be the deceased and the person making the application
• Any person who, immediately before the death of the deceased, was being maintained wholly or partly by the deceased. This does not include scenarios where the maintenance is part of a commercial relationship, for example being paid to clean the deceased’s house.

The estate must be of someone who has died domiciled in England and Wales.

When assessing reasonable financial provision, the court will take into account factors as set out in the Act. These main factors that the court will consider are: –

• The financial needs and resources of the claimant
• The financial resources and needs of beneficiaries of the estate
• The value of the estate
• The nature of the relationship between the claimant and the deceased

If the Court concludes that provision or further provision should be made to the claimant, it can exercise its powers to make an award to the claimant which may take the form of a capital sum, income, deferred payments and/or a trust.

Court proceedings under the Act should always be seen as very much a last resort due to the fact that they can be lengthy and costly. Parties are encouraged to resolve any dispute through negotiation and/or mediation which can bring about a much more cost-effective resolution and may assist in mending any family rifts.

Of significance is that any person bringing a claim under the Act must issue Court proceedings within six months from the date of issue of Grant of Probate or Letters of Administration. If that time limit has expired, the permission of the court is needed to issue and the Court would need compelling reasons for the delay in order to consider giving their permission for the application to proceed.