Articles

Inheritance Disputes – The Inheritance (Provision for Family and Dependants) Act 1975

• 16th Jul 2020
• Article written by Samuel Corse
• Share:

Whether a person dies with a legally valid Will or their estate is distributed under the law of intestacy (pre-determined rules to govern how a deceased’s estate is distributed where they die without a valid Will), the Inheritance (Provision for Family and Dependants) Act 1975 (“the 1975 Act”) makes provision for the Court to alter the distribution of a deceased’s estate, if it is found that the Will or rules under the law of intestacy fail to make ‘reasonable financial provision’ for an applicant.

 

Over the coming weeks, we will look deeper into the 1975 Act and how it operates in practice for the specific categories of applicants and also beneficiaries defending a claim. In this article we start off looking at the general principles of the 1975 Act.

 

Who can bring a claim?

 

People entitled to bring a claim under the 1975 Act are:

 

1. the deceased’s spouse or civil partner;
2. the deceased’s former spouse or civil partner (provided they have not remarried or entered into another civil partnership);
3. a cohabitee, provided they have ‘lived as the deceased’s spouse or civil partner for a minimum of two years before the deceased’s death’ (failure to meet such a condition could still see a cohabitee claim under f) below);
4. a child of the deceased (which includes adult children);
5. a person treated as a child of the deceased (for example, stepchildren);
6. any person being ‘maintained’ by the deceased immediately before their death, either wholly or partly.

 

The advantage of the 1975 Act for a prospective applicant

 

The below examples are just a number of situations in which the 1975 Act could be a method of seeking provision from an estate for prospective applicant:

 

1. The deceased may have died without making a Will and therefore, the law of intestacy dictates the distribution of their estate. A step-child, cohabitant or partner would not then benefit as they are not provided for under the law of intestacy.
2. A spouse/civil partner may have died during divorce proceedings and made a Will to omit the surviving spouse/civil partner from benefitting from their estate, before any award under a divorce.
3. The deceased may have made their Will many years ago when family circumstances where different. They may have rekindled a broken relationship within the family or been providing financial assistance to a person and not updated their Will in light of the change in their circumstances. As a result that person, reliant on receiving that continued financial assistance, does not inherit on their death.
4. They may have omitted a family member under their Will they made a long time ago on the understanding that the family member did not require any provision. However, over the years the family member’s financial position may have changed substantially and economic impacts, such as the recent Covid-19 pandemic, may now see them requiring provision from the deceased’s estate.
5. A beneficiary who had been provided with a home by the deceased may only receive a small share of the estate as a result of the deceased failing  to put adequate arrangements in place under their Will. Such beneficiary may require a greater interest in the home or a right to reside there.

 

The Two Stage Test

 

The Court will consider an application under the 1975 Act in two stages.

 

The First Stage - Does the deceased’s estate make reasonable financial provision for the applicant?

 

Depending on which category the applicant falls into, will depend on which standard will apply to the test of whether ‘reasonable financial provision’ has been made for the applicant:-

 

Spouse or civil partner – the question of ‘reasonable financial provision’ here is based on what is reasonable for them to receive in all the circumstances. There is no requirement for them to show that provision is required for his or her maintenance, as is the case for all other applicants below. Courts will often apply the same principles to what the spouse/civil partner would expect to receive if, on the date of the deceased’s death, the parties had divorced.

 

All other applicants – In all other cases the question of ‘reasonable financial provision’ is a question of what would be reasonable in all the circumstances for their ‘maintenance’. The key question arising here of course being what is ‘maintenance’? We will consider this question further over the coming weeks.

 

The Second Stage – What provision to award?

 

In the event the applicant is able to pass the first stage then, under the second stage, the Court must consider the question of what provision to award the applicant.

 

The Guidelines for the Court

 

There are guidelines set out under Section 3 of the 1975 Act to which the Court is to have regard when considering both stages of the above test for an applicant. There are general guidelines and also guidelines specific to the category of applicant. Again, we will consider these further over the coming weeks.

 

Is there a time limit?

 

Proceedings must be issued by an applicant within 6 months from the date the Grant of Representation is issued (i.e. Grant of Probate where there is a Will or Grant of Letters of Administration where there is no Will). The Courts do, however, have an unfettered discretion to extend this time limit in exceptional circumstances.

 

How do I bring a claim under the 1975 Act?

 

The first thing would of course be to consult our Contentious Trusts and Probate Team who would be able to go through your case in depth and advise you on the merits of the same. As you will see over the coming weeks, the 1975 Act is complex and there are a variety of factors that will need to be evidenced in any claim to show that it meets the guidelines under section 3.