Claims under the Inheritance (Provision for Family and Dependants Act) 1975
Charities often find themselves embroiled in disputes with dependants who bring claims under the Inheritance (Provision for Family and Dependants Act) 1975 (‘the Inheritance Act’).
Who can bring a claim?
- The spouse or civil partner of the deceased.
- The former spouse or civil partner of the deceased who has not remarried or entered a subsequent civil partnership.
- Any person cohabiting with the deceased for at least two years prior to their death.
- A child of the deceased (includes an adult child).
- Any person treated as a child by the deceased.
- Any person who was being maintained by the deceased.
Time limit for bringing a claim
There is a very strict time limit of 6 months from the date of the grant of representation or probate within which to bring a claim under the Inheritance Act. This time limit may be extended by the court in exceptional circumstances.
Factors the court can take into account
The court will have regard to the following factors when assessing a claim under the Inheritance Act:
- The applicant’s financial resources and needs.
- The financial resources and needs of any other applicant.
- The financial resources and needs of the beneficiaries, including charities if nominated as beneficiaries in the deceased’s Will.
- Any obligations and responsibilities the deceased had towards the applicant, any other applicant and any beneficiary, including charities if nominated as beneficiaries in the deceased’s Will.
- The size and nature of the deceased’s estate.
- Any physical or mental disability of the applicant, any applicant or beneficiary, including charities if nominated as beneficiaries in the deceased’s Will.
- Any other matter, including any conduct the court may consider relevant.
Orders the court can make
The court has a wide discretion to redistribute the deceased’s assets to provide a fair result.
The court can make any of the following orders:
- An order that the applicant should receive regular payments (known as ‘periodical payments’) from the net estate of the deceased, for as much and for as long as the Judge considers reasonable.
- An order that the applicant should receive a single lump sum payment from the estate.
- An order that a property owned by the deceased be transferred to the applicant.
- An order for the settlement of any property for the benefit of the applicant i.e. an order creating a trust for the applicant.
- An order for the purchase of property using assets of the estate, and for such property either to be transferred to the applicant or to be held in trust for the applicant’s benefit.
- An order varying trusts on which the deceased’s estate is held.
- An order varying any pre or post-nuptial (or pre- or post-civil partnership) settlement to which the deceased was a party.
- The court also has the power to make ‘interim’ orders for a payment or payments from the estate in cases where the applicant is in immediate need of financial assistance, but the court is not yet able to reach a final decision about the order it should make.
We always aim to resolve cases quickly.
If we are acting on behalf of a charity in defending an Inheritance Act claim we will draft a reply to the letter of claim setting out any evidence and legal arguments we have to counter the claim.
There is usually a pause here to allow the parties to try and settle the dispute. Mediation may take place at this stage.
Mediation is an effective way of settling Inheritance Act claims as it allows the parties to discuss their personal issues and to try and agree a way to divide the estate fairly.
If the claim cannot be resolved, we will defend any court proceedings and a Judge will decide after hearing all of the evidence at a trial which order to make.
Costs if the case goes to trial
The general rule is the court will order the losing party to pay the winner’s cost.
However the court has discretion to depart from this rule in certain circumstances and may order the costs to be paid from the deceased’s estate, each party to pay their own costs or in unusual cases order the winner to pay the loser’s costs.
The winner will normally only be ordered to pay the loser’s costs where they have acted in a particularly deceitful or aggressive manner or have refused to mediate.
It is therefore imperative that the case is handled correctly from the beginning.
We offer a number of alternative funding options which include:
- Fixed fees.
- Hourly rates.
- Conditional Fee Agreements (no win no fee).
- Contingency fees.
- Before the event insurance.
We are always happy to talk on an initial no obligation and informal basis so please email or call one of the team.