Expert Opinion: Making an inheritance claim when insufficient provisions have been made

Dispute Resolution Associate Solicitor, Nicola Moulds, at Cheshire law firm, SAS Daniels, discusses how you can make an inheritance claim if you believe insufficient provisions has been made for you.

Losing a loved one is always difficult, whether it was expected or not. That heartache can be compounded even further if their will, or the rules of intestacy, have failed to make ‘reasonable provisions’ for you. 

Historically, it has been a principle of English law that, in the event of their death, a person can leave their property to whomever they choose. But in 1975, parliament legislated to empower the Courts to make orders to help those unfairly left out of a Will and/or those who unfairly did not benefit under the rules of intestacy (which apply if there is no Will), such as stepchildren and unmarried partners.

Who Can Make a Claim?

If you were the deceased’s spouse, civil partner, cohabitee, child or were otherwise financially dependent upon them, you may have a valid claim under the Inheritance (Provision for Family and Dependents) Act 1975 (‘the 1975 Act’).

Although the loss of loved ones is by no means peculiar to the current pandemic, Coronavirus has brought into sharper focus some of the issues, which can arise following such a loss.  Likewise, these issues can be compounded further by the financial uncertainty now faced by so many.

Claims under the 1975 Act can arise in various circumstances, including where the deceased passed unexpectedly, without a Will or with an outdated will remaining in effect (for example after a change in domestic or family circumstances).

How to Make a Successful Inheritance Claim

There are two steps to succeed in a claim. First, the claimant must fall into one of the relevant categories:

1. Spouse or civil partner;
2. Former spouse or civil partner who has not remarried;
3. Unmarried partners who lived with the deceased as husband and wife for 2 years;
4. Children of the deceased (including adopted and illegitimate children);
5. A person financially maintained by the deceased.

If the claimant falls under one of the relevant categories above, it is then up to the claimant to prove that reasonable financial provision for them has not been made in the deceased’s will.  The claimant’s financial position will be a relevant consideration, as will the nature of the relationship between the parties.  For husbands, wives and civil partners, reasonable financial provision means what is reasonable in all circumstances (granting the Court a broad discretion). For other qualifying persons, reasonable provision means enough to provide for their maintenance, which is more modest.

The Supreme Court has determined that reasonable financial provision can include the provision of housing, albeit usually by creating a life interest rather than a capital and subsequently inheritable sum. The Court also commented upon the lack of clarity in the legislation as to who was or was not deserving of reasonable provision. Therefore, if the provision following a person’s passing feels wrong, it might well be actionable.

The present social distancing rules bring with them a further issue. Despite the virus having paused our lives for an uncertain length of time, a claim under the 1975 Act still needs to be commenced within six months of the date of the Grant of Representation or Grant of Probate (the ‘Grant’ is an official document confirming the authority of named individuals to administer the estate). The deadline still applies despite the current hiatus that has been enforced to the Courts Service and many others in the legal industry.