The Inheritance (Provision for Family and Dependants) Act 1975 (“the Act”)

A significant number of people do not make a Will, so with the number of “blended families” increasing, it is perhaps unsurprising that individuals are often left aggrieved and in financial need following the death of a loved one.

In England and Wales, there is a long-established legal principle of “testamentary freedom”, meaning an individual has the freedom to leave their assets (“estate”) to whom they wish.

There is no law that dictates a person must leave their estate in a particular way, unlike in some countries where “forced heirship” rules apply.

The Inheritance (Provision for Family and Dependants) Act 1975, to give it its full title, provides a mechanism to strike a balance between testamentary freedom and financial need for those who may be vulnerable or financially dependent upon the person who has died.

The Act applies only where the person died in England or Wales.

The Act gives the Courts in England and Wales limited powers to interfere with a Will (or the consequences of the Intestacy Rules, where there is no Will) if it is proved that it has made unreasonable (or no) financial provision from the estate for certain defined categories of people.

If the Court considers that the Will (or the Intestacy Rules) are unreasonable a balancing exercise based on various factors set out in the Act is undertaken, and modifications can be made to the distribution of the estate to provide financial maintenance.

Unless you were the Deceased’s spouse or civil partner, you can only bring a claim for “reasonable financial provision for your maintenance”.

This means that the court cannot make an award based on what is “fair”, no matter how much sympathy they may have for the person bringing the claim.

There is no one definition of “maintenance”, it is widely accepted that an award should allow for daily living costs to be met.

The Deceased’s estate will not be expected to fund a lavish lifestyle, but equally, an applicant should seek to live at a standard beyond a mere subsistence level.

What that means for each individual applicant is entirely subjective; each case turns on its own facts and the position should be discussed with the applicant’s solicitor as soon as possible to gain a better understanding.

The factors the court considers when deciding a claim are set out in section 3 of the Act, namely:

• The financial needs and resources which the claimant has now and in the future.
• The financial needs and resources which any other claimant has now and in the future.
• The financial needs and resources which the beneficiaries have now and in the future.
• Any obligations and responsibilities that the Deceased had towards the claimant and beneficiaries.
• The size and nature of the Deceased’s net estate.
• Any physical or mental disability which the claimant or beneficiaries have.
• Any other matter, including the conduct of the claimant or any other person, that the court may consider relevant.

Applicants who wish to bring a claim under the Act must do so by beginning court proceedings within six months of the date of the Grant of Probate or Letters of Administration.

This is the document that the executor/administrator obtains after the Deceased’s death to administer the estate.

The bringing of a claim requires the issue of a claim with the Court.

A claim under the Act is not classed as a Probate claim, and, as such, claimants should use the Part 8 procedure available under the Civil Procedure Rules (CPR).

The six-month time limit will not be met until the Court receives the claim.

If the Grant has been extracted, the six-month date by which to bring a claim can be easily calculated.

In circumstances where no Grant has been extracted yet, an application can be made to the Probate Registry for a Standing Search (Rule 43 of the non-contentious probate rules “NCPR”) requiring the Probate Registry to notify the applicant if/when a Grant is issued.

In addition, searches of the register can be made using the search probate records for documents and wills (England and Wales) feature on the government website.

The entry of a caveat under Rule 44 NCPR is not appropriate in standalone claims under the Act.

If you are considering bringing a claim, it is important to get legal advice as soon as possible.

Many people worry about the prospect of going to Court and trial.

While many cases have to be issued at Court (to comply with the limitation date) it is very rare for cases to reach trial. Most cases are resolved by Alternative Dispute Resolution (“ADR”).

ADR is a process by which parties try to resolve their disputes without going to court.

• Check if there is a Will – obtain a copy of the Will to establish if you are included in this. If you are not in the Will, consider if you benefit under the Intestacy Rules.
• Check eligibility – consider if you are within the category of people who can bring a claim.
• Take early advice – act quickly to avoid missing the limitation deadline and to allow your advisor time to consider your case.
• Gather evidence – be prepared with relevant financial information relating to your income, expenditure, debts and any future needs and expenses.
• Size and nature of the estate – the value of the estate is important. Details of the assets the Deceased had, including their values, if known, are helpful. If the estate includes property, try and establish an approximate value.
• Expectation – manage your expectations by being realistic about what a reasonable financial provision is.