Where a deceased's Will or the Rules of Intestacy do not make provision for an individual that was dependant on the deceased, that individual may make a claim to the Court for financial provision from the deceased's estate under the Inheritance (Provision for Family and Dependants) Act 1975.
Important initial considerations
It is important to first note that there is a time limit in which a claim must be brought.
Any claim must be made within 6 months of the date of the grant of probate or letters of administration. Whilst claims brought after this period may still be accepted, permission must first be sought from the Court so that a Judge can decide if such a claim should be allowed to be brought.
When making such a decision, the Court will bear in mind: -
Whether the claimant has a substantial case for it being just and proper for the Court to use its discretion to extend the time limit.
Whether the claimant has promptly and what the circumstances are that have prompted permission of the Court being sought.
Whether the defendants have been previously provided with any notice of the proposed claim.
If negotiations have already taken place with the defendants within the 6 month time limit.
If the estate has already been distributed.
Whether a refusal to extend the time limit would leave the claimant without an alternative remedy to their situation.
Who can make a claim
There are a number of classes of individuals who can make a claim and these are: -
The spouse or civil partner of the deceased.
A former spouse or civil partner of the deceased.
Any person who was living with the deceased (as a husband, wife or civil partner) for 2 years before their death.
Any child of the deceased.
Any person who, at the time of the deceased's death, was treated by the deceased as a child of the family.
Any person who, at the time of the deceased's death, was being maintained either wholly or partly, by the deceased.
How will the Court consider a claim
The approach adopted by the Court is twofold. Firstly, the Court will consider whether reasonable financial provision has been made for a Claimant from the deceased's estate. Thereafter, if the Court decides that reasonable financial provision has not been made, then it will consider what, if any, additional provision should be made from the deceased's estate.
What is considered as reasonable financial provision by the Court will change on a case by case basis but will be assessed on the following factors:-
The financial resources and needs (now and in the future) of the claimant.
The financial resources and needs (now and in the future) of any other claimants.
The financial resources and needs (now and in the future) of the beneficiaries of the estate.
The obligations and responsibilities of the deceased towards any claimant or beneficiary.
The size and nature of the net estate of the deceased.
Any physical and mental disabilities that the claimant or beneficiary may have.
Any other matter that the Court considers to be relevant.