Our wills, probate and life planning team often receives enquiries from people asking how they might challenge the content of someone’s will. Whilst we covered this in an article in February 2023, here’s a handy reminder which might help you – or someone you know.

1 – Starting point: What is reasonable financial provision?

The Inheritance (Provision for Family and Dependants) Act 1975 provides a mechanism whereby those who are eligible can make a claim against an estate where they feel they have not been given reasonable financial provision. What constitutes reasonable financial provision, however, depends on a number of factors, such as to what, if any, extent you were financially dependent on the deceased and your relationship to the deceased, for example a spouse or child.

2 – Who can bring a claim?

Section 1 of the Act lists those who can bring a claim which includes:

• The spouse or civil partner of the deceased
• A former spouse or former civil partner of the deceased, but not one who has remarried or entered a new civil partnership
• Any person who for two years prior to the death, was living with the deceased as if they were a spouse or civil partner
• A child of the deceased
• Any person (not being a child of the deceased) who was treated as a child of the family by the deceased
• Any person who immediately before the death of the deceased was being maintained, either wholly or partly, by the deceased

3 – How long do I have to bring a claim?

To make a claim under the Act for reasonable financial provision you have just six months from the grant of probate being issued. This short period of time catches many people unaware and results in them having to make an application out of time. Courts will consider out of time applications, but you must have a very good reason for delaying – as well as a strong potential claim against the estate.

4 – What will the court consider when deciding my case?

In its decision, the Court will determine an award based on the following criteria, which is set out in Section 3 (1) of the Act:

• The financial resources and financial needs you have or are likely to have in the foreseeable future
• The financial resources and financial needs which any other eligible applicant has or is likely to have in the foreseeable future
• The financial resources and financial needs which any beneficiary of the estate of the deceased has or is likely to have in the foreseeable future
• Any obligations and responsibilities which the deceased had towards any applicant for an order under the said section 2 or towards any beneficiary of the estate of the deceased
• The size and nature of the net estate of the deceased
• Any physical or mental disability of any applicant under the Act or any beneficiary of the estate of the deceased
• Any other matter, including your conduct and the conduct of any other person, which in the circumstances of the case the court may consider relevant

5 – Is Court action the only way forward?

If the parties involved in your claim cannot reach an agreement, then you will have to make a formal court application. Bear in mind that court action can be a costly and drawn-out process. Therefore, most parties will decide to resolve the claim by way of alternative dispute resolution, usually in the form of a mediation. This is a more informal process where the parties negotiate, usually with assistance from their legal representatives. The parties will only be bound by what is agreed if they sign a formal settlement agreement at the end of the day of mediation.

How can Lennons help?

We understand how worried, angry and uncertain you may feel if you have not been adequately catered for in a will. Please get in touch with us on 01494 773377, get in touch by email to hello@lennonssolicitors.co.uk, live chat, or by completing our online enquiry form.

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