Feeling left out? The Inheritance (Provision for Family and Dependants) Act 1975

In England and Wales, you have the freedom to leave your property to whomever you choose upon your death. But what if your loved ones feel they’ve been left high and dry? The Inheritance Act 1975 (the Act) steps in to ensure fairness, allowing certain individuals to challenge a Will that doesn’t adequately provide for them. This legal safety net balances the scales between your freedom to choose and your family’s right to financial security. 

So, whether you’re drafting your Will or feel that you have been unfairly left out of a family member’s Will, understanding the Inheritance Act 1975 is crucial.

Who can make a claim?

The Act outlines specific categories of people who are eligible to make a claim:

• Spouse or Civil Partner: This includes both the current and former spouses or civil partners, provided they have not remarried.
• Children: Biological, adopted, and even those treated as children of the family can make a claim, regardless of their age.
• Dependents: Anyone who was financially maintained by the deceased immediately before their death can also apply. This could include a live-in partner or someone who received regular financial support.
• Cohabitants: Individuals who lived with the deceased as a couple for at least two years before their death.

What are the grounds for a claim? 

The sole ground for a claim under the Act is that the Will or the rules of intestacy (which apply when a person dies without a Will) does not make “reasonable financial provision” for the applicant. The court assesses this based on two standards:

• Surviving Spouse Standard: This applies to spouses and civil partners and considers what would be reasonable in all circumstances, even if not strictly necessary for their maintenance.
• Ordinary Standard: This applies to all other categories and focuses on providing for the applicant’s maintenance, meaning their everyday living expenses.

The court also considers various guidelines outlined in the Act, including:

• Financial Resources and Needs: The court assesses the financial situation of both the applicant and the beneficiaries named in the Will.
• Deceased’s Obligations: Any legal or moral obligations the deceased had towards the applicant are taken into account.
• Size and Nature of the Estate: Larger estates are more likely to accommodate claims, while smaller estates may have limited resources.
• Disability: If the applicant or any beneficiary has a physical or mental disability, this is considered in the assessment.

Time limit and court orders

Claims must generally be made within six months of the grant of representation. However, the court has the discretion to extend this time limit if there are valid reasons for the delay.

If a claim is successful, the court has broad powers to make orders against the deceased’s estate, including periodical payments, a lump sum payment, or a transfer of property.

Conclusion

The Inheritance Act 1975 provides a safety net for individuals who may be unfairly left out of a Will or not adequately provided for. While testamentary freedom is generally respected, the Act ensures that the deceased’s obligations towards their dependants and loved ones are not entirely disregarded.

If you believe you have grounds for a claim under the Act, or you are the executor of a Will which has been challenged, or you need advice on drafting a Will, our litigation team is readily available for consultation. For more information, email info@bussmurton.co.uk or call 01892 510 222.