Contentious probate Q&A

Contentious probate Q&A Question 4

• 29th Jul 2021
• Article written by Emma Salmon
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Question

“My husband of 30 years has recently died. I have discovered that he made a Will 29 years ago leaving his entire estate to his adult children from a previous relationship. I have been left nothing and his children are refusing to give me anything. What are my options?”

Answer

You may have a claim under the Inheritance (Provision for Family and Dependants) Act 1975 (“the Act”). One of the categories of applicant who can bring a claim under the Act is as spouse of the deceased. From the information that you have provided it sounds a though you would satisfy the first requirement to establish a claim under the Act.

The next stage will be to evidence that your late husband’s Will does not make reasonable financial provision for you. This does not have to be limited to your ‘maintenance’ unlike for certain other category of applicant’s under the Act.

The Will has provided you with no financial provision which means the Court would need to consider whether no provision is reasonable financial provision. In doing this, the Court would consider the factors that are set out within Section 3 of the Act, which include weighing up:

1. Your, your late husband’s children’s and any other potential applicant’s financial resources and needs that you have or are likely to have in the foreseeable future;
2. Any obligations and responsibilities which the deceased had towards you, your late husband’s children and/or any other potential applicant;
3. The size and nature of your late husband’s net estate;
4. Any physical or mental disability you, your late husband’s children or any other applicant may have;
5. Your age and the duration of the marriage;
6. The contribution you made to the welfare of the family of your late husband, including any contributions made by looking after the home or caring for the family; and
7. Any other matter, including your, your late husband’s children or any other applicant’s conduct, which in the circumstances the Court may consider relevant/

As part of any initial instruction we would ask you to provide these details in depth to enable us to properly assess the merits of your claim and advise on possible next steps.

Whilst there could be attempts to try and settle your claim beforehand, any proceedings must be issued by you within six months from the date the Grant of Representation is issued, unless a standstill is agreed with the other parties and approved by the Courts.

The 1975 Act is complex and there are a variety of factors that will need to be evidenced in your claim. If you would us to go through your case in more depth and advise you on the merits of the same, then please contact our Contentious Probate, Trusts and Estates Team on 01622 698 000 or get in touch with us at the bottom of the page.