The Inheritance (Provision for Family and Dependants) Act 1975 (“the Act”)

A significant number of people do not make a Will, so with the number of “blended families” increasing, it is perhaps unsurprising that individuals are often left aggrieved and in financial need following the death of a loved one.

In England and Wales there is a long-established legal principle of “testamentary freedom” meaning an individual has the freedom to leave their assets (“estate”) to who they wish.

There is no law that dictates a person must leave their estate in a particular way, unlike in some countries where “forced heirship” rules apply.

The Inheritance (Provision for Family and Dependants) Act 1975, to give it its full title, provides a mechanism to strike a balance between testamentary freedom and financial need for those who may be vulnerable or financially dependent upon the person who has died.

The Act only applies where the person died living in England or Wales.

The Act gives the Courts in England and Wales limited powers to interfere with a Will (or the consequences of the Intestacy Rules, where there is no Will) if it is proved that it has made unreasonable (or no) financial provision from the estate for certain defined categories of people.

If the Court considers that the Will (or the Intestacy Rules) are unreasonable a balancing exercise based on various factors set out in the Act is undertaken, and modifications can be made to the distribution of the estate to provide financial maintenance.

Unless you were the Deceased’s spouse or civil partner, you can only bring a claim for “reasonable financial provision for your maintenance”.

This is all the Court has the power to award.

The Act does not give the power to make a distribution to achieve an equal distribution of the estate or what might be perceived as fair or reasonable.

Unhelpfully, maintenance is not defined in the Act, but it generally means what is necessary to meet daily living costs. Maintenance does not amount to an expectation that the estate will meet a more lavish lifestyle, but equally it is more than subsistence level.

This is decided on a case-by-case basis. It could, for example, include money to clear debts and to meet any monthly deficit. It might also cover things like medical treatment and the cost of obtaining qualifications to improve employment prospects.

The position for spouses and civil partners is different. The starting point (and only the starting point) for this category is what they might have received had the marriage or partnership ended on divorce as opposed to death.

The Court can consider the standard of living and expectation of the claimant. There is less emphasis on maintenance need.

The factors the court considers when deciding a claim are set out in section 3 of the Act, namely:

• The financial needs and resources which the claimant has now and in the future.
• The financial needs and resources which any other claimant has now and in the future.
• The financial needs and resources which the beneficiaries have now and in the future.
• Any obligations and responsibilities that the Deceased had towards the claimant and beneficiaries.
• The size and nature of the Deceased’s net estate.
• Any physical or mental disability which the claimant or beneficiaries have.
• Any other matter, including the conduct of the claimant or any other person, that the court may consider relevant

Each claim will depend upon its own unique set of circumstances and merits. 

In acting for a Claimant, the importance of a detailed examination of the criteria above (arising from Berger v Berger [2013] EWCA Civ 1305, Re Salmon [1981] Ch 167 and Re Dennis [1981] 2 All ER 140] cannot be overstated. 

Specialist and expert advice should always be taken at the earliest opportunity to prevent your position from being prejudiced. 

When acting for a Defendant, you must consider whether the Claimant has satisfied the above requirements. 

If not, it could be worthwhile challenging the out-of-time application and potentially obtaining a costs order in your favour. 

Many people worry about the prospect of going to Court and trial. While many cases have to be issued at Court (to comply with the limitation date) it is very rare for cases to reach trial. Most cases are resolved by Alternative Dispute Resolution (“ADR”).  

ADR is a process whereby parties try to resolve their disputes rather than go through the court system. 

Success 

A successful case, whether achieved by ADR or court order, can take many different forms, such as a lump sum payment, the transfer of a property, periodic payments from an estate for several years or an interest in a particular property.

The outcome very much depends on the individual case. If you are successful in your claim, your opponent will normally also be ordered to pay your legal costs, but this is not always guaranteed.  

Approaching any potential claim strategically will assist in establishing if you have a viable claim and being well placed to move any case forward quickly and effectively. Below are some tips to assist: 

• Check if there is a Will – obtain a copy of the will to establish if you are in any Will. If you are not in the Will consider if you benefit under the Intestacy Rules

• Check eligibility - Consider if you are within the category of people that can bring a claim 

• Take early advice – Act quickly to avoid missing the limitation deadline and to allow your advisor time to consider your case. 

• Gather evidence - be prepared with relevant financial information relating to your income, expenditure, debts and any future needs and expenses.  

• Size and nature of the estate – the value of the estate is important. Details of what assets the Deceased had and values if known are helpful. If the estate includes property try and establish an approximate value. 

• Expectation – manage your expectations by being realistic about what reasonable financial provision is.