Disputed Wills and Trusts
Inheritance Act Claims
The Inheritance (Provision for Family and Dependants) Act 1975
If you have found yourself left out of a will, not left as much as you need under a will or unable to inherit as a result of intestacy (where there is no will) you may still be able to make a claim against the deceased’s estate using The Inheritance (Provision for Family and Dependants) Act 1975.
The Inheritance Act enables the court to vary the distribution of the deceased’s estate for certain family members and dependants.
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.
In exceptional circumstances it may be possible to extend the time limit but you should seek legal advice as soon as possible as any delay can be fatal to a claim.
Factors the court take into account
We will be able to provide you with an estimate of what you may be entitled to once we have discussed the case with you and made some initial investigations into the size of the estate.
The court will have regard to the following factors when assessing your claim:
- Your financial resources and needs.
- The financial resources and needs of any other applicant.
- The financial resources and needs of the beneficiaries.
- Any obligations and responsibilities the deceased had towards you, any other applicant and any beneficiary.
- The size and nature of deceased’s the estate.
- Any physical or mental disability of you, any applicant or beneficiary.
- 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 you 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 you should receive a single lump sum payment from the estate.
- An order that a property owned by the deceased be transferred to you.
- An order for the settlement of any property for your benefit i.e. an order creating a trust for you.
- An order for the purchase of property using assets of the estate, and for such property either to be transferred to you or to be held in trust for your 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 you are 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.
Once we have provisionally assessed your claim we will draft a letter of claim setting out the basis of your claim and the financial provision you are seeking from the deceased’s estate.
The letter is sent to the Executors of the estate for their reply.
If we are acting on behalf of the Executors 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 issue court proceedings for you 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 you handle the case correctly from the beginning and get a strong legal team on board to advise you.
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.
What should you do now?
You should contact us immediately if you think you may have a claim under the Inheritance Act as very strict time limits apply.
We also act for Executors and beneficiaries in defending Inheritance Act claims so please feel free to get in touch with us.
We are always happy to talk on an initial no obligation and informal basis so please email or call one of the team.