There are two ways that a person can make a claim against a deceased’s estate, the first being a claim under the Inheritance (Provision for Family and Dependants) Act 1975.
In England and Wales, we have Testamentary Freedom. This means we are free to leave our estate to anyone we choose, and exclude individuals we do not want to benefit. Many countries (Scotland for example) have forced heirship laws which means that some or all of an individual’s estate must pass to certain family members, despite what the individual’s Will says. The IPFD Act 1975 does not give a person an automatic right to a share of the estate, instead it gives an excluded person a right to challenge the estate.
The conditions to bring a claim are as follows:
- The deceased must have died domiciled in England or Wales.
- The claim must be made within six months of the Grant of Probate being taken out. The IPFD Act 1975 does however provide that the court may grant permission for a claim to proceed after this six-month period.
- The person bringing the claim must fall into one of six categories of applicant, which we will discuss below.
- The deceased’s Will or intestacy must have failed to have made reasonable financial provision for the applicant. Note that this condition is ‘reasonable’ provision, not ‘any’ provision. Some provision may have been left for a beneficiary, however it may not be deemed as reasonable.
We will now discuss the six categories of applicant that can bring a claim. It is important to note that each claim is assessed on a case-by-case basis and there is no typical ‘one rule for all’ when it comes to successful claims.
Spouse or Civil Partner
For a spouse or civil partner to make a claim against an estate, they must show that the marriage or civil partnership existed at the time of death, and they had not divorced or dissolved the civil partnership. If they were separated but still married or in a civil partnership, they would still be entitled to make a claim. This also applies to judicially separated spouses; who will still count as a spouse for the purpose of the IPFD Act 1975 claims.
Spouses that are older applicants and have therefore had a longer marriage would have a stronger claim than say, someone who was young and only married to their spouse for a year before their death. In addition to this, a spouse that has spent the duration of the marriage looking after the deceased’s home would have a stronger claim than if living apart or were separated.
Former Spouse or Civil Partner
For a former spouse or civil Partner to make a claim against an estate, they must not have remarried or entered into a new civil partnership. These claims are rare due to there usually being a section 15 order included in the divorce settlements/agreements which prevents the bringing of a claim against each other, even if they haven’t remarried.
For a cohabitant to make a claim against an estate, they must have been living as though they were the deceased’s spouse or civil partner for at least 2 years before the testator’s death and must have been living in the same household. The two-year period must have been unbroken (i.e. no breaks in the relationship rather than something like an extended hospital stay) and the relationship must be ‘openly acknowledged’.
This can often be quite difficult to prove and courts will consider whether a reasonable person would think that the couple were living together as husband and wife. Courts can be flexible with the 2-year period, this is shown in the case of Kaur v Dhaliwal and another  EWHC 1991. In this case, the couple met 4 years before the deceased’s death and got engaged shortly after. They lived together for 3 months but there was roughly a year gap where it was uncertain where both parties lived. They then lived together for one year and 49 weeks before the deceased’s death. The judge in this case concluded that despite the disruptions in their living arrangements, a settled relationship had continued throughout the statutory period up to death so as to satisfy the IPFD Act 1975 and allow provision from the estate.
The court will look at factors such as how they were splitting the finances of the home, the length of relationship and if they were being maintained.
Child of the Deceased
This category includes both legitimate and illegitimate children, adopted children and also those children ‘en ventre sa mere’ (conceived before death). There is no age limit on claims made by children, although claims by able bodied adult children are generally less likely to be successful. There are some exceptions to this which has been set out below.
In the recent case of Ilott v Mitson (2011), an estranged adult child (Ilott) made a successful claim against her mother’s estate. She had been estranged from her mother for 26 years at her death. Her mother’s estate was valued just under half a million pounds. Ilott challenged the estate as it had been left to 3 animal charities. She was successful and was initially awarded £50,000 due to her being in a poor financial position. Ilott appealed via the Court of Appeal in 2015 and was awarded £143,000 in order to allow her to buy her property along with an additional £20,000. However the charities appealed to the Supreme Court and the amount that was awarded to Ilott was reduced back down to £50,000.
Person treated as a Child of the Family
This extends the definition of the family to cover a wide range of cases where someone has treated a child as their own, such as aunts, uncles, cousins and neighbours for example. This category is open to both minors and adults.
This category catches those who were dependent on the deceased, but do not fall into any of the previously mentioned categories.
The burden of proof for proving the dependency is on the applicant making the claim. Section 1(3) of the IPFD Act 1975 states that “a person is to be treated as being maintained by the deceased (either wholly or partly, as the case may be) only if the deceased was making a substantial contribution in money or money’s worth towards the reasonable needs of that person, other than a contribution made for full valuable consideration pursuant to an arrangement of a commercial nature.”
If a person is excluding another person in their Will, and they believe that they may make a claim or may be entitled to make a claim, it is important that the testator writes a Letter of Wishes to explain the reasons why the excluded party is not benefitting, and the other beneficiaries have been included instead. This letter would not stop a person from being able to claim or having a successful claim altogether, however it can give weight to the argument that the person is not entitled to any of the estate as is it the testator’s own words.
It is important to add that a person receiving no provision in the Will does not mean that their claim will be successful. A court may rule that the reasonable amount of financial provision is in fact nothing at all.
If you are interested in speaking to someone regarding your estate planning, please visit our Find a Member page to search for a SWW Member nearby or call the office on 01522 687 888 and a member of the team will be more than happy to help.