Family Provision Claims / Claims under the Inheritance

In England and Wales, individuals have freedom to leave their estate to whoever they wish.  This is known as testamentary freedom.  Not all countries have the benefit of testamentary freedom and instead, forced heirship rules dictate to who an individual’s estate (or a certain portion of their estate) will pass on their death.

However, it is important to be aware that testamentary freedom is subject to statutory intervention. The Inheritance (Provision for Family and Dependants) Act 1975 (I(PFD)A 1975) enables certain categories of people, who were financially dependant on the deceased, to bring a claim against their estate for reasonable financial provision.

We appreciate that it can be daunting bringing a claim as you are grieving for your loved one and may also be coming to terms with the fact that they have not provided reasonably for you.

We also understand that it can be daunting when a claim is brought against the estate and you are a beneficiary of the estate.

Preliminary issues

In order to bring a claim under the I(PFD)A 1975:

•  the deceased must have been domiciled in England and Wales when they died.

•  the claim must be issued within 6 months of the grant to the estate (Letters of Administration, Grant of Probate, etc.). In some circumstances the court can be asked to allow a claim outside of this time however, the applicant must demonstrate a good reason for the delay.  Without a good reason, the court is unlikely to permit the claim to proceed.  It is therefore advisable to issue legal proceedings within the 6 month period where possible.

The following individuals may bring a claim:

•  the deceased’s spouse / civil partner;

•  the deceased’s former spouse / civil partner, provided they have not remarried and provided there is no agreement not to bring a claim;

•  the deceased’s cohabitee provided they were living with the deceased as their spouse / civil partner for two years immediately before the deceased’s death;

•  a child of the deceased (including an adult child);

•  a person treated by the deceased as a child of their family; and

•  a person maintained by the deceased.

The person bringing the claim has one ground of claim, namely that the the deceased’s estate does not make reasonable financial provision for them.

Reasonable financial provision is measured by two standards depending on the class of the applicant:

• a spouse / civil partner  — for a spouse / civil partner reasonable financial provision is such financial provision as it would be reasonable in all the circumstances of the case for the applicant to receive, whether or not that provision is required for their maintenance (note this generally does not apply where there was a judicial separation order);

• all other applicants — for all applicants apart from a spouse / civil partner, reasonable financial provision is such financial provision as it would be reasonable in all the circumstances of the case for the applicant to receive for their maintenance.

The applicant must show that reasonable financial provision has not been made for them in all the circumstances of the case.

The factors that the court will have regard to in all cases include:

• the financial resources and financial needs which the applicant has or is likely to have in the foreseeable future;

• the financial resources and financial needs which the beneficiaries and any other applicants have or are likely to have in the foreseeable future;

• the deceased’s obligations and responsibilities towards any applicant and any beneficiary of the estate;

• the size and nature of the deceased’s net estate;

• any physical or mental disability of any applicant and any beneficiary; and

• any other matter, including conduct which in the circumstances the court may consider relevant.

All factors will be considered as they appear at the date of the court hearing, not at the date of death. It is therefore essential that all the evidence is up to date at the time of the court hearing and that it reflects such changes as may have occurred in the situation of the claimant, the beneficiaries and the estate’s value.
There are also matters that the court will have regard to for specific applicants.

The court will also have regard to:

• the age of the applicant;

• the duration of the marriage / civil partnership;

• the contribution by the applicant to the welfare of the family of the deceased, including looking after the home or caring for the family; and

• in the case of a spouse/civil partner (only), what they could have expected to receive if the relationship had ended on the day of death by reason of divorce/dissolution order rather than death.

The court will also have regard to:

• the age of the applicant;

• the length of the cohabitation; and

• the contribution by the applicant to the welfare of the family of the deceased, including looking after the home or caring for the family.

In respect of a child of the deceased and a person treated by the deceased as a child of the family, the court will also have regard to the manner in which the claimant was being or might expect to be educated or trained.

Additionally, in respect of a person treated by the deceased as a child of the family (but not a child of the deceased), the court will have regard to:

• whether the deceased maintained the applicant and, if so, for how long and on what basis, and the extent of the maintenance; and

• whether in maintaining or assuming responsibility for maintaining the applicant the deceased did so knowing the applicant was not their own child; and

• the liability of any other person to maintain the applicant.

The court will also have regard to:

• the length of time and basis on which the deceased maintained them and the extent of maintenance; and

• whether and, if so, to what extent the deceased assumed responsibility for the maintenance of the applicant.

Where the court is satisfied that reasonable financial provision has not been made for the applicant, it has power to make an order, including for:

• payment of a lump sum, which is the most common order;

• regular payments;

• the transfer of property; and/or

• settlement of property.

Family provision claims are very well suited to mediation or other forms of alternative dispute resolution. The advantage of this is that the parties can reach a solution to the claim that is acceptable to them as opposed to having the court impose a resolution. The majority of claims settle and do not reach a final court hearing. This is generally beneficial for all parties as it saves on costs and emotional distress.