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Recent polls indicate that 66% of people have not discussed their Wills or planned legacies with their loved ones. This suggests that, despite the majority of people expecting to receive an inheritance from their family, many will only discover whether they have actually inherited anything after their relative passes away. So, if you find out that you have been excluded from a relative’s Will, is there anything you can do about it?
Types of claims
There are various reasons why someone may be excluded from a Will, such as the Will being considered invalid or specific parts of a Will being unclear. We discuss these issues in our article on contentious probate disputes here.
However, sometimes the problem is that the deceased has chosen to exclude a specific person, has not updated their Will to reflect changes in relationships, or simply does not have a Will. In these circumstances, close relatives may end up receiving nothing from the estate. This is particularly common in blended families, where the law has not kept up with changes in family structures. In such cases, it may be possible for disinherited relatives to make a claim under the Inheritance (Provision for Family and Dependants) Act 1975, commonly known as “the Inheritance Act 1975”.
Who can claim under the Inheritance Act 1975?
The Act allows specific categories of people to make a claim against an estate for “reasonable financial provision.” These claims are not open to everyone, and the claimant must fit into one of the following categories:
- A spouse or civil partner of the deceased.
- A former spouse or civil partner of the deceased (provided that person has not remarried or entered into a subsequent civil partnership).
- A person who, for the two years before the death, was living with the deceased as if they were a spouse or civil partner.
- A child of the deceased.
- A person who was treated as a child of the family by the deceased.
- Any other person who was being maintained, wholly or partly, by the deceased immediately before their death.
A child of the deceased may be either an adult or a minor child. However, the amount an adult child is entitled to is likely to be lower than that for a minor child.
What are they entitled to?
If a claim is successful, the claimant will only be entitled to financial provision that is reasonably necessary for their maintenance. What is considered reasonably necessary will vary depending on the claimant, but a general guide is that they should be living at “neither a luxurious nor poverty-stricken level.”
Relevant considerations when determining the amount a claimant may be entitled to include any physical or mental disability of the claimant, any obligations the deceased had towards other people benefiting from their estate, the financial resources of the claimant and other beneficiaries, and the size and net worth of the deceased’s estate.
A spouse or civil partner is usually able to claim a higher level of financial provision, even if that financial provision is not necessarily required for their maintenance. The court will take into account the standard of living the claimant enjoyed before their partner died, and assess the award based on the type of financial settlement that would have been available to the claimant if their marriage or civil partnership had ended by divorce rather than their partner’s death.
The claim must be met from the estate itself, and so a successful claim will result in other beneficiaries receiving less from the estate.
When can a claim be brought?
Claims under the Inheritance Act 1975 must be issued within 6 months, unless there are exceptional circumstances. Anyone considering or defending a claim should therefore enter into discussions with the other parties to the potential claim well in advance of that timeframe.
Inheritance Act claims vary greatly depending on the facts of the case and the Court has wide discretion to award sums to a successful claimant. It is important to seek advice early if you have concerns about a relative’s estate or if someone is considering bringing such a claim against you.
If you are seeking advice, or you are facing or considering a claim under the Inheritance Act 1975, or have any questions regarding this article, please contact Hannah McElroy or any other member of the team.
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