15 March 2023

Disputing a Will under the Inheritance Act - FAQs

Our legal system works on the premise that a person can leave their estate to anyone they wish. Often, however, we find cases where partners and family members who believe they should have benefited from a Will are left in need due to lack of reasonable provision either in a Will or because someone hasn’t made a Will.

In these circumstances, the Inheritance (Provision for Family and Dependents) Act 1975, also known as the ‘Inheritance Act 1975’, may allow you to make a claim for an award.

The Inheritance Act 1975 allows potential applicants to claim reasonable financial provision from an estate. What amounts to reasonable financial provision depends upon whether the claim is made by a spouse, or another applicant. If a spouse makes a claim, they are entitled to such provision that is ‘reasonable in all the circumstance’ to maintain their standard of living. In cases relating to other categories of applicant, reasonable financial provision means what is required for their maintenance needs.

FAQs

Can I make a claim under the Inheritance Act 1975?

There are a number of potential applicants that can make a claim under the  Inheritance Act 1975. You can make a claim if you are:

  • The spouse or civil partner of the deceased

  • The former spouse or civil partner of the deceased (as long as you have not remarried, and such claims are not excluded in the divorce order)

  • A person that was living with the deceased as if they were a spouse or civil partner two years before their death

  • A child of the deceased

  • A person who was treated as a child of the family by the deceased

  • Any person who was being maintained, in whole or in part, by the deceased immediately before their death

What factors does a court consider under the Inheritance Act 1975?

 When exercising its power under the Inheritance Act 1975, the court will consider:

  • The financial resources and financial needs of the applicant and any other beneficiary or potential beneficiary

  • The obligations and responsibilities of the deceased toward the applicant and other parties

  • The size and nature of the deceased’s estate

  • Any physical or mental disabilities of the parties

  • Any other relevant factor

My partner and I were unmarried, and they died without leaving a Will. Can I bring a claim?

In this scenario, if you and your partner have been cohabiting for the two years prior to your partner’s death, you may qualify to bring a claim under the Inheritance (Provision for Family and Dependents) Act 1975. You may also fall under the separate heading as being financially maintained by the deceased, for example if you were living in their property or you shared your living expenses.

The court may award you a sum from your partner’s estate as you have not been provided for.

Are there time limits for making an application under the Inheritance Act 1975?

A claim under the Inheritance (Provision for Family and Dependents) Act 1975 should be issued at court within six months from the date the grant of probate was issued and therefore you should proceed without delay.

It is possible to bring a claim out of time, but we would require the court’s permission. The court is sympathetic to allow claims out of time in certain cases.

Are there other options available to me if I have been left out of a Will by a close family member?

If you do not qualify to bring a claim under the Inheritance Act, other potential claims may exist.

If you have contributed financially to a property that was not in your name, you may have acquired what is known as a beneficial interest. Alternatively, if someone made a promise to you that you would receive something from their estate and this has not happened, a claim may exist.

For more information on which option is the best for you, please do get in touch for a chat about your individual circumstances.

I am concerned about the validity of my relative’s Will. What should I do?

If you have concerns  about how a relative’s Will was made, you may want to investigate this for peace of mind. get to the bottom of it to protect your relative and their estate.- You may have concerns in relation to lack of testamentary capacity, undue influence, or want of knowledge or approval.

In this circumstance, we can prepare a ‘Larke v Nugus request’. This means that we will ask the solicitor who prepared the Will to disclose their file and provide a statement detailing the circumstances in which the Will was made.

We can ask questions depending on the concerns at hand. For example, if there are concerns about a relative’s mental capacity to write a Will, we can ask the Will writer to explain details of whether a testamentary capacity assessment was undertaken.

If there are concerns about the validity of someone’s will, it is important to act quickly to avoid the estate from potentially being distributed on the basis of an invalid will. If you think you need to make a claim under the Inheritance Act 1975 or you are also questioning the validity of a Will, please contact our contentious probate team.

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