• Edward Richings

The Inheritance Act 1975 – who can claim for inheritance?

What is the Inheritance Act 1975? Can I claim against an estate after distribution for inheritance? How do I claim for inheritance under the Inheritance Act 1975? Can a non-family member contest a Will?

This article outlines how someone can make a claim against an estate for financial provision from a deceased person’s estate.

Whilst it is true that you have testamentary freedom to give away property capable of passing in your Will as you wish, there are some limitations on this notion.

One such limitation is through the Inheritance (Provision for Family and Dependants) Act 1975 (“the Inheritance Act 1975”).

The Inheritance Act 1975 allows certain categories of people to apply for reasonable financial provision from a deceased’s estate who died domiciled in England and Wales.

This may be because they were disappointed to be left out of a Will, they are not inheriting under the intestacy rules or they are unsatisfied with the amount they are receiving under the Will or intestacy rules and wish to inherit more.

This article explores who can make a claim, what they can make a claim for and how their claim would be treated by the courts.

What is the Inheritance Act 1975?

The Inheritance Act 1975 allows certain categories of people to bring a claim against the estate of a deceased person where ‘reasonable financial provision’ has not been made for them under that person’s Will or the intestacy rules.

What is the time limit for making a claim?

You must apply to the court within 6 months of the issue of the grant of representation to the estate.

Though, the court does usually have a discretion to extend this time limit.

The grant of representation is a formal document which confirms someone is the executor or administrator (i.e. the personal representative) and they have authority to deal with the administration of the deceased person’s estate.

Who can apply to make a claim under the Inheritance Act 1975?

You can make a claim under the Inheritance Act 1975 if you fall in one of the following categories:

  • Spouse or civil partner of the deceased;

  • Former spouse or civil partner of the deceased (provided you have not remarried or entered into another civil partnership). However, the divorce court usually bars the former spouse or civil partner from making a claim;

  • A child of the deceased;

  • Any person who, in relation to a marriage or civil partnership in which the deceased was at the time a party, was treated by the deceased as a child of the family (most commonly a step-child);

  • A person who was living in the same household as the deceased as ‘husband or wife’ or a civil partner of the deceased for a period of 2 years ending immediately on the deceased’s death (most commonly known as a cohabitee); or

  • Any person who, immediately before the death of the deceased, was being maintained either wholly or partly by the deceased (i.e. someone who was financially dependent on the deceased).

  • A person is ‘maintained’ if the deceased was making a substantial contribution in money (or money’s worth) to that person’s reasonable needs.

  • This may include a dependant relative or even a secret lover.

  • The deceased must have been doing this for nothing in return. For example, an employee or nanny would not be included here as the money received from the deceased was in return for the services they provided.

What do I have to prove in my claim?

You must prove that the distribution of the deceased’s estate, either by Will, under the intestacy rules, or both, was effected in such a way that you were not left with reasonable financial provision.

The standard as to what constitutes ‘reasonable financial provision’ depends on whether you were a spouse or civil partner of the deceased.

For all applicants except spouses and civil partners, ‘reasonable financial provision’ means ‘such financial provision as it would be reasonable in all the circumstances of the case for the applicant to receive for his maintenance’.

For spouses and civil partners, financial provision is not limited to what is required for maintenance.

What do the courts consider when looking at my claim?

The court considers a wide range of factors when deciding whether reasonable financial provision has been made for the applicant and, if not, what order it should make for financial provision from an estate.

These factors include:

  • The financial needs and resources of the applicant, any other applicant and any beneficiary of the estate, both now and in the foreseeable future;

  • Any obligations and responsibilities that the deceased had towards any applicant or any beneficiary of the estate;

  • The size and nature of the estate;

  • Any physical or mental disability of any applicant or beneficiary; and

  • Any other conduct.

The court also considers other factors depending on the category of the applicant.

For example, if the spouse or civil partner brings a claim under the Inheritance Act 1975, the court will also consider the applicant’s age and contribution to the family’s welfare and the duration of the marriage or civil partnership.

The court will also consider the ‘deemed divorce’ test. This asks the court to consider what the applicant would have received had the marriage ended on divorce rather than on death.

If the applicant is a child of the deceased, the applicant’s education or training requirements are also considered.

It is worth noting that such claims are not limited to minor children.

Adult children can make a claim against their parent’s estate; though, such claims are likely to be more difficult to bring than for minor children.

When considering all these factors, the court takes into account the facts at the date of the hearing, rather than on death.

How does the court make its decision?

Firstly, the court will consider whether or not the provision made for the applicant is reasonable.

If the court determines that there is not reasonable financial provision, it will then consider whether such provision should be made.

In answering these questions, the court consider the two standards outlined above.

What orders can the court make?

The court has wide powers to make claims against the ‘net estate’ of the deceased.

These include orders for periodical payments, lump sum payments and even the transfer of specific property to the applicant.

The ‘net estate’ includes not only property which has, or could have been, passed by Will, but also any share of joint property which would otherwise pass by survivorship (such as property held as joint tenants).

However, the court can only make an order against the share of such joint property where the claim is made within 6 months of the grant of representation.