A person is entitled to leave their estate to whoever they want however there are some people who might reasonably expect to receive a share of it. In cases where reasonable financial provision has not been made, the Inheritance (Provision for Family and Dependants) Act 1975 allows the Court to change the shares of the deceased’s estate.
Am I eligible to bring a claim?
The Inheritance Act sets out the categories of people who may be eligible to bring a claim. These categories are:
- the spouse or civil partner
- a former spouse or civil partner who has not remarried or registered a new civil partnership
- a person who was cohabiting with the deceased as ‘husband and wife’ for at least 2 years prior to their death
- a child of the deceased
- a person treated by the deceased as a child of the family
- a person who was being maintained by the deceased
What is a reasonable financial provision?
Where you are the spouse of the deceased it is defined as such financial provision as it would be reasonable in all the circumstances of the case for a husband or wife to receive, whether or not that provision is required for his or her maintenance.
In cases involving the civil partner of the deceased it would be defined as such financial provision as it would be reasonable in all the circumstances of the case for the civil partner to receive, whether or not that provision is required for his or her maintenance.
For all other categories of people, reasonable financial provision means such financial provision as it would be reasonable in all the circumstances of the case for the applicant to receive for his maintenance.
What will the court consider?
In deciding whether to change the shares of the deceased’s estate, the Court will consider a number of factors in order to decide whether reasonable financial provision has been made and if not, what order should be made. These factors are referred to as the ‘Section 3 factors’ and are as follows:
- 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 any other applicant for an order under section 2 of this Act has or is likely to have in the foreseeable future;
- the financial resources and financial needs which any beneficiary of the estate of the deceased has or is likely to have in the foreseeable future;
- any obligations and responsibilities which the deceased had towards any applicant for an order under the said section 2 or towards any beneficiary of the estate of the deceased;
- the size and nature of the net estate of the deceased;
- any physical or mental disability of any applicant for an order under the said section 2 or any beneficiary of the estate of the deceased;
- any other matter, including the conduct of the application or any other person, which in the circumstances of the case the court may consider relevant.
Is there a time limit for bringing a claim?
An applicant must start their court claim within 6 months of a grant of probate or letter of administration being used. The court does have some discretion to permit claims out of time but only where exceptional circumstances prevent this person bringing a claim earlier.
If you require further advice or assistance on this issue or any civil disputes, please contact Stephanie Doughty by e-mail at stephanie.doughty@hindle-campbell.co.uk or by telephone on 0191 296 1777.