Contesting a Will and Inheritance (Provisions for Family Dependants) Act 1975

Incidents of contested wills have risen in recent years in England & Wales. This is mainly due to diverse family structures and increasing property values, meaning successful inheritance claims are increasingly valuable.

Under the Inheritance (Provisions for Family Dependants) Act 1975 (the 1975 Act), relatives and dependants can challenge the provisions of a will if they do not make "reasonable financial provision" for them. A claim can be brought under the 1975 Act even if the will is valid or if there is no will in place.

Who can claim under the 1975 Act?

To claim under the 1975 Act, you must fall into one of the following categories:

• A spouse or civil partner of the deceased
• The former spouse or civil partner of the deceased who has not remarried
• A cohabitee of the deceased – this means that they must have been living together as if they were husband and wife or civil partners for at least two years before the date of death
• A child of the deceased
• Someone who was treated as a child of the family – this can include adult children
• Someone who was financially maintained by the deceased

What will the court take into account when considering a claim under the 1975 Act?

There are two stages when it comes to considering an application made under the 1975 Act.

The first is to look at what will constitute a "reasonable financial provision" – the answer to this will depend on the category that the applicant falls into. Where the applicant is the spouse or civil partner of the deceased, the provision will be based on what it is reasonable for the applicant to receive, rather than what sum is required to maintain them. For other applicants, this will be based on what would be reasonable in the circumstance for the applicant’s maintenance.

If the court determines that a reasonable financial provision has not been made in the will, a decision on any award will be made by considering the following factors:

• The financial resources and needs of the applicant
• The financial resources and needs of any other applicants
• The financial resources and needs of any beneficiaries of the estate
• The deceased’s obligations and responsibilities to other applicants or beneficiaries
• The size and nature of the estate
• Any physical or mental disability of other applicants or beneficiaries
• Any other matters, including the conduct of the applicant, which the court considers relevant

Conclusion

You should be aware that a claim must be issued within six months of receipt of the grant of probate (otherwise permission of the Court will be needed). It is also important to know that the merits of your claim will depend on your individual circumstances; however, case law suggests that the duration of the marriage or civil partnership is a relevant factor. Historically, claims made by financially independent adult children have struggled to succeed, although recent case law shows that if there is an 'additional something' in the child's circumstances, then the court is more likely to make an award. Examples might include a mental or physical disability or a moral obligation, such as when the child has worked in the family business. 

Should anyone require professional advice on contesting a will or an executor of an estate defending such a claim, then please do not hesitate to message Sundeep Oberoi on LinkedIn or get in touch with him at SNV Law.

SNV Law - www.snvlaw.co.uk

28/10/2019

Disclaimer: the contents of this article are for general information purposes only. Nothing in this article constitutes legal advice or give rise to a solicitor/client relationship. The reader should obtain specialist legal advice in relation to their specific circumstances. No warranty, express or implied, is given as to its accuracy, and the author does not accept liability for error and/or omission.