How the Inheritance Act 1975 can help you
You would be forgiven for believing that vast swathes of available information about creating a will and making provisions for the most important people in your life on death ensures that the probate process is fairly straightforward for everyone.
Unfortunately, this is often not the case. For example, many people die without a (valid) will in place, leaving matters subject to the general rules of Intestacy. In other instances, a valid will exists but there is either insufficient financial provision for those who consider that the provision should have been greater, and sometimes no provision at all.
The Inheritance (Provision for Family and Dependants) Act 1975 (“IA 1975”) can assist in such circumstances.
How it works
The IA 1975 allows a person to make a claim against an Estate if they have not been properly provided for or not at all. At the outset, it is important to make clear that the Estate must belong to a deceased person who is domiciled within the jurisdiction of England & Wales.
If the applicant is eligible and within time (see below) to bring a claim, the potential financial provision is contingent on the class of applicant. In the instance of a spouse or civil partner, the court will award what it considers is reasonable for them to receive, whether or not the provision is necessary for their maintenance. For other classes, the court’s intention is to award reasonable financial provision as is necessary for their maintenance, insofar as the estate can provide it.
The actual amount of the financial provision awarded by the court very much depends on the individual matter. Under section 3 of IA 1975 there are a variety of factors to be taken into account by the court, including the applicant’s financial resources, the applicant’s financial needs and the nature of the relationship shared by the applicant and the deceased.
Who can claim?
A claim under the IA 1975 can be brought by the following classes of person:
spouse/civil partner of the deceased
the former spouse/civil partner of the deceased who has not remarried or entered into a further civil partnership;
a person who has lived with the deceased for a minimum of two years prior to death;
a child of the deceased (including children of adult age);
a person treated as a child of the deceased’s family (such as a foster or step-child); and
a person who was being domestically maintained by the deceased prior to death
An applicant has six months from the Grant of Representation/Probate or Letters of Administration to bring a claim under IA 1975. In only exceptional circumstances will it be possible to get the time limit extended so it is important not to delay starting a claim.