If you have been left out of a Will, or you are not sufficiently provided for under the intestacy rules, you could be entitled to make a claim for reasonable financial provision.
Who can make a claim for reasonable financial provision?
The Inheritance (Provision for Family and Dependents) Act 1975 allows certain classes of people to contest a Will, on the grounds that reasonable financial provision has not been made. This might arise if the deceased:
- Left you out of their Will entirely
- Left you a gift, but this is not sufficient to meet your needs
- Did not make a Will and you are not provided for under the intestacy rules
Only certain people are entitled to make a claim for reasonable financial provision under the Act. This includes if you:
- Are the spouse or civil partner of the deceased
- Are the former spouse/civil partner of the deceased and you have not remarried or entered into another civil partnership
- Where living with the deceased as cohabitants for at least two years before their death
- Are a child of the deceased
- Were treated as the deceased’s child, be it as a step-child, adopted child or foster child
- Were financially maintained wholly or partly by the deceased
It does not matter where you live in the world, or how old you are – if you fall into any of the above categories and the deceased failed to make reasonable financial provision for you, you could be entitled pursue legal action.
However, it is important to note that if you intend to bring legal action in England or Wales, the deceased must have been domiciled in England or Wales at the date of their death.
What is reasonable financial provision?
For a claim to succeed, it must be reasonable to expect the deceased to meet your living costs. For example, if you were financially dependent on the deceased during their lifetime, it is reasonable to expect this arrangement to continue after their death. The court does not give credence to disgruntled beneficiaries who feel the Will is unfair, or who were hoping for a greater share of the estate.
The concept of ‘reasonable financial provision’ differs depending on your relationship to the deceased. If you were married or in a civil partnership, the law states that you should receive: “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.”
Things become slightly more complicated if you were separated from the deceased, or you were going through divorce proceedings at the date of their death. If a financial settlement has yet to be made, and a decree absolute was issued in the 12 months before the deceased’s death, the court may effectively disregard the fact that your relationship had broken down. Otherwise, you may only be able to claim what is reasonable for your maintenance – as is the case for all other applicants.
How will a court decide?
If you wish to make a claim under the Act, you must prove that reasonable financial provision has not been made – even though it should have been. The court will consider various factors when deciding whether to grant your request, such as:
- Your financial resources and needs, both now and in the foreseeable future
- The financial resources and needs of any beneficiary or other applicant, both now and in the foreseeable future
- The obligations and responsibilities the deceased had towards any beneficiary or applicant
- The size and nature of the deceased’s net estate
- Any physical/mental disability of any beneficiary or applicant
- Any other matter, including your conduct or any other person that the court may consider relevant
If you were married or in a civil partnership with the deceased, the court will also consider:
- Your age
- The duration of the marriage/partnership
- The contribution you made to the welfare of the deceased’s family
- What you might reasonably have expected to receive, if on the day of the deceased’s death the marriage had ended by divorce (this is called the ‘deemed divorce’ test)
If the deceased left a letter of wishes alongside their Will, explaining their decision to cut someone out of their Will, this may be taken into account by the court. A prenuptial agreement may also provide an insight into the parties’ intentions. Such documents are not legally binding, so will not be automatically enforced, but they may influence the judge’s final decision.
What can the court decide?
If the court agrees that reasonable financial provision has not been made, it may order various different remedies, including:
- The payment of a lump sum of money
- Regular payments for living expenses
- The transfer of property into your name
- The creation of a trust for your use
- The variation of certain settlements, such as a post-nuptial settlement
- The settlement of property
Will I have to go to court?
You might not need to go to court when making a claim for reasonable financial provision. Such claims can often be resolved via mediation, in which you and the estate’s personal representatives agree a solution between yourselves. This can save the time and expense of litigation through the courts.
However, if a resolution cannot be agreed upon, your only option is to take a claim to court.
Is there a time limit?
If you want to make a claim for reasonable financial provision, it is important to act quickly. Court proceedings must be issued within six months of a Grant of Representation being issued. If you miss the deadline, the court may grant an extension, but only in exceptional circumstances.
Get early legal advice
If you have not been properly provided for under a Will or the intestacy rules, please contact us at Garner & Hancock Solicitors. We can advise you of your rights, explaining whether or not you have grounds to pursue a claim for financial provision.