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If you have recently lost a close relative, or have been named executor of their estate, it is important to have a basic knowledge of probate law in order to understand and implement your rights lawfully and effectively. This guide will provide you with a brief summary of the rules and instances for when Inheritance Act claims against an estate can be made.
If you make a will, you can give your estate away in whatever way you think fit. There is an exception to this however. The Inheritance (Provision for Family and Dependants) Act 1975 provides protection and allows a spouse, children and other dependants to claim against an estate for dependency in the event of not being included in the will. The Court needs to consider whether the deceased left a fair share of the family assets.
Any person wanting to make a claim must be alive. If the person dies, then their Personal Representatives cannot continue with their claim. There are various different categories of potential claimants. These include the following:-
- Spouse/Civil Partner
- Former Spouse/Civil Partner
- Co-habitee living 2 years in the same household.
- Child or person treated as a child.
- Person maintained immediately before death.
The test as to whether a claim will be successful is dependent on whether provision that has been made for the Applicant is reasonable. This is an objective approach and is assessed based on the facts of the case, the testator’s reasons and any change in the beneficiary’s circumstances.
There are two standards that need to be considered, as follows:–
The test here is reasonable financial provision in all the circumstances whether or not provision is required for maintenance.
- For other claimants the test is reasonable financial provision for their maintenance only in a manner suitable to their circumstances.
The applicant must be domiciled in England and Wales.
The application must be submitted six months from the date of the Grant.
There are certain factors that the court will take into account in relation to all applicants. These include the following:-
- Financial – in terms of balancing resources and the needs of all persons with the claim against the estate.
- Moral obligations to all Claimants.
- The size and nature of the estate.
- Mental and physical disability.
- Any other matters such as conduct or statement from the Deceased.
There are additional guidelines which take into account the spouse or civil partner including the age of the applicant, the duration of the marriage, financial contributions to welfare of the family, whether divorce provision is expected and just generally at the court’s discretion.
For a cohabitee to claim, they must have cohabited with the deceased for the two years immediately before death. The court consider the age of the applicant, the period they have lived together and the contribution by the applicant to the welfare of the deceased and family.
The court will take into account the type of education the child has received, the extent of any maintenance including had the deceased assumed responsibility for the child’s maintenance and was it intended to continue after death? What was the basis for the deceased assuming responsibility? What length of time the deceased had taken responsibility for the child.
Further, the court will take into account whether the deceased treated the child as a child of the family and considered the manner of the child’s education, whether the deceased assumed responsibility for the child’s maintenance, over what period of time, whether the deceased knew the applicant was his child and the liability of any other person for the child’s maintenance.
It is possible for other persons who were partly or wholly maintained by the deceased prior to death to include common-law wives and mistresses. If they can prove their dependency to the deceased they may also be entitled to make a claim. The court will consider to what extent the deceased made contributions to that person’s reasonable needs and will consider the contribution and length of maintenance, whether the deceased assumed responsibilities for maintenance.
If the Applicant is successful, then the court will make an order against the nett estate of the deceased. There are different types of orders a court can make including periodical payments, lump sums, settlements, property acquisition or variations of existing settlements.
A claim against an estate must be brought within 6 months of a Grant of Probate being issued. The Court does have the power to admit late applications in exceptional circumstances however. To prevent an estate being distributed, a caveat can be lodged which prevents the Grant of Probate from being issued for 6 months. Alternatively a Standing Search can be made to obtain details of every Grant of Probate issued in the past 12 months and in the next 6 months.
It is expensive and time consuming to make a claim against an estate and expert legal advice is strongly recommended. Please call us on 01536 276300 for a free no obligation chat and receive a quote.
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