Inheritance Act Claims

Frequently Asked Questions

• What is an Inheritance Act Claim?

  An Inheritance Act claim is a claim against an estate of a deceased person for financial provision.  The Inheritance (Provision for Family and Dependants) Act 1975 enables certain categories of people to bring a claim for provision where they have not been included in a will or under the rules of intestacy (or have been included but only to a limited degree).

• Who can bring a claim?

  Only those listed in s1 of the Inheritance Act can bring a claim and they are;

  • Spouse or former spouse (or civil partner/ former civil partner)
  • A child of the deceased or any person treated by the deceased as his/ her child
  • A cohabitee who has been living with the deceased as though a spouse (or civil partner) for a period of at least 2 years prior to death 
  • A person financially supported by the deceased immediately prior to their death.  

  Claims can only be bought under the Inheritance Act if the deceased died domiciled in England and Wales.

• What is an Inheritance Act claim for?

  The claim is for ‘reasonable financial provision’.  A claimant must firstly show that reasonable financial provision was not made under the will/ intestacy.  

  If a court finds that reasonable provision was not made, the court will decide what reasonable financial provision for the claimant might be.   

  This will firstly depend upon whether the claimant is a spouse/ civil partner because a spouse / civil partner is entitled to a higher level of provision than other claimants.   

  The assessment of what reasonable provision might be will turn upon the particular facts of each case, to which the court will apply a list of criteria provided by s3 of the Inheritance Act.  

  Each criteria is given equal weight but, depending on the case, some will be more relevant than others.  Each will be judged upon the prevailing circumstances at the time of the hearing and in the ‘foreseeable future’.   The criteria are;

  1. The financial resources and needs of the claimant; 
  2. The financial resources and needs of any other applicant;
  3. The financial resources and needs of any beneficiary of the estate;
  4. Any obligation and/ or responsibilities which the deceased had towards the claimant or any other applicant or beneficiary;
  5. The size and nature of the net estate of the deceased;
  6. Any physical or mental disability of the claimant or any other applicant or beneficiary;
  7. Any other matter, including the conduct of the applicant or any other person, which in the circumstances of the case the court may consider relevant.
• When should an Inheritance Act claim be bought?

  If you have not been included in a will or you are concerned about limited provision, you should seek specialist advice as soon as possible.  A claim must be lodged with the court within 6 months of the grant of probate being issued.   You do not (and should not) wait for the grant of probate to lodge your claim and it is wise to advise the executors as early as possible about your potential claim.    The earlier that you can prepare your claim and notify the executors the better.  

• Can an executor defend an Inheritance Act claim on behalf of the estate?

  As an executor you will have to be involved in a claim and there is certain information that you should provide a claimant if a claim is proposed.  However, as an executor your function is to remain impartial between beneficiaries and potential beneficiaries (including claimants) of an estate.  

  There are some circumstances where there may be no beneficiaries able to defend the claim (perhaps if all the beneficiaries are minor children) and in such circumstances the executor / trustee may need to defend the claim on their behalf.   It is important to seek specialist advice as early as possible if this issue arises as the executor/ trustee will need to take steps to protect their position (particularly on the issue of costs).

• Who defends an Inheritance Act claim?

  It is the residuary beneficiaries who are included in the will or under the intestacy rules, who have a vested interest in the outcome of a claim as it is they who will ultimately lose out if a claim is accepted or settled.   It is therefore for the beneficiaries to actively defend an inheritance act claim against the estate.  

• How can I pay for the costs of bringing or defending an Inheritance Act claim?

  Legal costs which arise in Inheritance Act claims can be very expensive especially if court proceedings are issued.   We can discuss your options and, where appropriate, offer conditional or deferred fee arrangements.  

• Do the wishes of the deceased matter?

  There can be many reasons for not including someone in a will – relationship breakdown, a desire to benefit someone else who the testator feels has greater need etc.  A court will consider the deceased’s wishes and reasons as part of their evaluation of the claim and when applying the relevant s3 criteria (see here) particularly the ‘any other matter’ and the deceased’s ‘obligations’ criterion.  However, this will have no more weight than any of the other criteria.   A court is not bound by the deceased’s reasons or wishes and can make an order for provision regardless.  

• Is there anything that can be done to prevent a claim under the Inheritance Act?

  There is no way to prevent a claim if someone who would expect to inherit and who falls within the category of people able to claim is either entirely excluded or only included in a very limited way.  However,  the Deceased’s wishes and reasons for making his will is a factor which the court will consider, and so it is a good idea when writing a will which is likely to cause problems, to write a clear statement of reasons which should be kept with the will.  This is often known as an Inheritance Act statement.  

  There are other steps, such as including a small gift to the person not otherwise included made contingent upon that person not disputing the will.   Advice should be taken on the wording of such a clause which, to be valid, must be clearly and carefully drafted.