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:
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:
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.