If you have been left out of a Will, received less than you believed you would or do not inherit under the intestacy rules, you may have a claim under the Inheritance (Provision for Family and Dependants) Act 1975 (“the Act”).

This is a claim seeking “reasonable financial provision” from an estate.

Only certain categories of people can bring this claim, including spouses, civil partners, cohabitees (who were living with the Deceased for a period of at least two years before death), children, and people who were being maintained by the Deceased.

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What does the court take into account?

When deciding whether reasonable financial provision has been made and, if not, what provision to make, the court will consider the following:

  1. The financial needs and resources the applicants and beneficiaries have now and in the future.
  2. Any obligations and responsibilities the Deceased had towards applicants and beneficiaries.
  3. The size and nature of the net estate.
  4. Any disabilities of the applicants and beneficiaries.
  5. Any other matter, including the conduct, which the court may consider relevant in all the circumstances of the case.

This blog focuses on point 3 above – i.e. the estate and, specifically, what you can do if the Deceased has made a lifetime gift which reduces the size of the estate.

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Section 10 of the Act

It may be that the Deceased has made a gift during their lifetime, which means that the estate is now relatively modest.

This does not necessarily mean that you cannot bring a claim.

Section 10 of the Act provides that, on a successful application, the court can order the person who received the gift to “pay into the estate” to allow provision to be made for an applicant under the Act.

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Limitations to Section 10

There are some limitations to this section, including:

  1. The lifetime gift must have been made within six years of the date of death.
  2. The Deceased must have had an intention to defeat a claim under the Act.
  3. The person receiving the gift (or any other person) must not have paid full market value for the asset. 

It is important that you establish the reason for the lifetime gift as early as possible.

There may be multiple reasons for a lifetime gift having been made.

It does not matter how many reasons there were as long as one of them was to defeat a claim under the Act.

If you can find evidence of the intention, you may be able to bring a claim regardless of the size of the estate.

Therefore, this section of the Act is very helpful in allowing claims to be pursued that would not otherwise be able to proceed.  

Claims under Section 10 of the Act are often complicated, so legal advice must be obtained immediately.

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If you need professional legal advice in relation to lifetime gifts or the Inheritance Act, please contact Myerson Solicitors' Contentious Probate team on: