As detailed in our recent blog, “The effect of Re H (Deceased) (2020) on costs awarded in Inheritance Act claims”, The Inheritance (Provision for Family and Dependants) Act 1975 (“the Act”) provides a legal basis for certain categories of individuals to bring a claim against an estate if they feel they have not been reasonably provided for in a Will or under the rules of intestacy where there is no Will.

We understand that bringing a claim under the Act or, having to defend a claim as an Executor, may be a daunting and unfamiliar prospect - as such, our Contentious Probate team is here to help.

Who can bring a claim?

Whilst claims under the act are commonly brought by a spouse or civil partner of the deceased, the Act specifically sets out additional categories of individuals who are permitted to claim. The additional categories are as follows:

• The former spouse of civil partner of the deceased (subject to the exception of them having remarried/entered into another civil partnership);

• A person who was living with the deceased for a minimum of two years prior to death;

• A child of the deceased (or a person treated as a child of the deceased, including but not limited to adopted children and step-children); and

• Any other person who was being maintained by the deceased.

What can be claimed under the Act?

The claim under the Act is for ‘reasonable financial provision’ and therefore it is necessary to prove that you had a reasonable expectation of your living costs being met by the deceased prior to their death.

An objective approach is taken by the Court when considering the question of reasonable financial provision. In particular, the following factors are to be considered:

• The financial resources (current and future) of the claimant and the beneficiaries of the estate;

• Any financial obligations owed to the claimant by the deceased prior to their death i.e. whether and the extent to which the claimant was financially dependent on the deceased;

• The size and nature of the estate;

• Any disability (physical or mental) of the claimant and the beneficiaries;

• Any other factor which the Court may consider relevant;

Although the same factors are to be considered in respect of all claims, the meaning of reasonable financial provision is different depending on who is bringing a claim. A claim brought by a spouse or civil partner considers reasonable provision in all circumstances, whereas a claim by any other category raises the question of reasonable financial provision only in respect of maintenance and is therefore more restrictive.

Are Court proceedings necessary?

Individuals bringing or defending a claim should always be alert to the possibility of the claim proceeding via Court. That being said, Court proceedings are not inevitable and where appropriate, we encourage parties to engage in negotiation with a view to settling matters outside of Court (which has numerous benefits, including the minimisation of costs).

Regardless of whether a claim proceeds in our outside of Court, our Contentious Probate team works closely with our Litigation department when handling Inheritance Act claims. By ensuring continued involvement from both departments, we aim to provide clients with combined expertise to increase the chances of success.

Whether you are faced with defending a claim or considering bringing a claim, we are here to help so please get in touch today.

Key contacts: Ben Marsden and Alice Ashurst | Tel: 01482 324252