Inheritance Act Claims

If you are the spouse or civil partner of the Deceased, the court will consider what financial provision is reasonable in all the circumstances, irrespective of whether such provision is required for your maintenance.

The starting point (and only the starting point) is what you might have received had the marriage or partnership ended on divorce, rather than death.

The court can consider the standard of living and expectation of the claimant. There is less emphasis on a maintenance need, although your financial position and needs will be considered.

For all other categories of claimant, reasonable financial provision is limited to what is required for your maintenance. Unhelpfully, maintenance is not defined within the Act, but it generally means what is necessary to meet daily living costs.

Maintenance is not about supporting a claimant to be able to live a lavish lifestyle, but equally, it is not about providing the bare minimum to only allow them to live at subsistence level.

What is required for a claimant’s maintenance will be decided on a case-by-case basis. For example, it could include money to pay debts or to meet any monthly deficit. It may also cover expenditures such as medical treatment or the cost of obtaining qualifications to improve the claimant’s future employment prospects.

It is important to establish what your needs are at the outset.

The Act sets out what the court will consider when deciding a claim. This includes:

• 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, which in the circumstances of the case the court may consider relevant

Spouse or civil partner

The court will consider the factors set out above but will also consider other relevant factors such as:

• The age of the claimant and the length of the marriage or civil partnership (and whether you lived together before the marriage or civil partnership)
• The contributions made by the claimant to the welfare of the family – this would include looking after the home or caring for children and other family members, as well as any financial contributions

The court will also look in detail at the claimant’s assets and assess the value of all assets held by the claimant and the Deceased together. The proposed division of assets is then subject to the ‘divorce crosscheck’ as the court wants to ensure that the claimant is not worse off than they would have been if the claimant and the Deceased had divorced.

Each claim will depend upon its own unique set of facts and specialist expert advice should always be taken at the earliest opportunity to prevent your position from being prejudiced.

The court is ultimately required to strike a balance between the claimant receiving an appropriate amount of financial support, without unfairly depleting the estate for the benefit of the other beneficiaries.

Spouse or civil partner

You are not required to show evidence of financial need but you will be required to provide full disclosure of all income and assets.

Children, partner and other dependants

You will be required to show evidence of financial need. This will include completing a financial questionnaire to list your sources of income (including any benefits you receive), your savings, and your monthly expenditure, which includes your outgoings in respect of:

• Property you own/rent
• Vehicles and/or transport costs
• Personal expenditure
• Outstanding debts
• Children who are financially dependent on you

In most cases, you will be required to disclose bank statements as evidence of your income and expenditure.

If you are living with another person as a “household”, their financial information will also be relevant meaning their bank statements could also be required.

The court has discretion to choose what type of financial provision to make and it will depend on the claimant’s particular needs. An award could be:

• A lump sum of money
• Periodic payments (weekly or monthly payments)
• A transfer of property or assets

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

There are strict time limits to bring a claim under the Act and therefore it is important to act quickly.

You have 6 months from the date of the Grant of Probate or the Grant of Letters of Administration to bring a claim.

Sometimes there are good reasons why a claim has not been issued in time, for example if the claimant has been ill. In some circumstances, you may be able to make an application to the court to bring the claim out of time.

The court has a wide discretion to allow claims to be brought outside of the 6-month time limit, but the discretion will be exercised depending on the circumstances of the case. The court will consider the following:

• Has the application for permission been made promptly?
• Had any negotiations commenced within the 6-month period?
• Has the estate been distributed?
• Would the claimant be able to seek redress elsewhere?
• Has the claimant got a meritorious claim?

If you think you may have a claim but are out of time, please contact us as soon as possible and we will advise whether we believe you may still be able to bring a claim. 

Yes, a claim may be contested by the Personal Representative of the estate or a beneficiary of the Will/intestacy. Importantly, these different capacities mean Personal Representatives and beneficiaries do have a different role to play in these claims. This is because Personal Representatives must adopt a neutral position in respect of the claim with their role being limited to providing the other parties and the court with information about the estate. It is the beneficiaries who can actively defend a claim meaning they are the “true” defendants.

Many people worry about the prospect of going to court and the claim proceeding to trial. While many cases are issued at court to protect the claimant’s position before the limitation date referred to above, it is very rare for cases to reach trial.

Most cases are resolved by Alternative Dispute Resolution (‘ADR’), which is a process whereby parties try to resolve their disputes outside of court.

A common form of ADR is a process called mediation. This is where a neutral third party, known as a mediator, guides the conversation between the parties and helps them navigate through the issues to find a mutually acceptable resolution that works for everyone. Mediation is a less formal and less expensive option for resolving a dispute than going to court.

Pursuing a claim all the way to trial is undoubtedly expensive. However, it is rare for this type of claim to reach trial as it is usually settled ahead of this stage, often through Alternative Dispute Resolution such as mediation.

Whilst some clients pay privately for our expert advice, we may be able to offer you an alternative funding arrangement, including a Conditional Fee Agreement (commonly referred to as a no win no fee agreement). Our lawyers will discuss any options available for your particular claim at the outset.

If the claim goes to trial and you are unsuccessful, you will normally be ordered to pay your opponent’s costs but this is not guaranteed.

If you withdraw your claim prior to court proceedings being issued, you may be able to negotiate the position on costs with your opponent.   

There are various circumstances in which someone may bring a claim under the Act and each case must be considered on its own facts. Some of the most common type of claimants include:

• A spouse or civil partner who is left nothing, or insufficient provision under a Will
• An adult child who is left nothing, or with needs which means that they receive insufficient provision under a Will
• Unmarried partners who are left nothing, or with needs which means that they receive insufficient provision under a Will
• An estranged spouse who has been left without provision under a Will
• Unmarried partners where the Deceased has died without a Will (as they do not inherit from the estate under the intestacy rules)