Claims under the Inheritance Act 1975

Under the Inheritance (Provision for Family and Dependants) Act 1975, a variety of individual classes of individual applicant may make an application to the court for an award on the basis that the testator’s Will fails to make reasonable financial provision for them.

A claim lies only where the testator died domiciled in England and Wales and should ordinarily be made within six months of the grant of representation being obtained.

A large number of such claims are made every year. The vast majority arise in cases of intestacy and, or of those, most are brought by the survivor of two cohabitees, for whom the intestacy rules make no provision whatsoever. Some claims, however, are brought by persons who believe that a Will has failed to make reasonable financial provision for them. Often these arise in cases of second marriages where there is conflict between the surviving spouse and the children of a previous marriage either because the children perceive that their inheritance is being paid to a stranger or because the testator has made substantial provision for his children without appreciating what effect this might have on the surviving spouse.

Not everyone is a potential claimant but the following persons may make an application for reasonable financial provision under the Act as of right:

1. The husband or wife or civil partner of the testator who has not remarried or formed a new civil partnership;
2. The former husband or wife or civil partner of the testator who has not remarried or formed a new civil partnership;
3. In the case of persons dying after 1 January 1996, a person who during the whole period of two years ending immediately before the testator’s death was living in the same household as the testator as the husband or wife or civil partner of the testator;
4. A child of the testator;
5. A person treated by the testator as a child of the family in respect of a marriage or civil partnership to which the testator was a party; and
6. Any other person not included in the above categories who immediately before the testator’s death was being maintained wholly or partly by the testator.

It does not follow that a person who is within one of the recognised classes of applicant will be able to make out a claim under the Act. When considering an application under the Act, the court may only make an order if it concludes that the testator’s Will fails to make reasonable financial provision for the applicant. Sometimes it is reasonable to make no provision for a potential applicant. Mature adult children with their own financial security and to whom the testator owes a moral obligation no greater than the paternal or maternal bond ordinarily requires will have considerable difficulty in maintaining a claim. There is, however, nothing that can be done to stop a determined applicant from pursing a claim against the estate even if that claim is ultimately unsuccessful.

If the court is satisfied that the testator’s Will fails to make reasonable financial provision for the applicant it must then go on to consider what reasonable financial provision for the applicant would be in all of the circumstances.

The Act sets out a number of factors which the court must take into account at both stages of this process. These are:

1. The size of the net estate;
2. The financial needs and resources of the applicant, or which the applicant is likely to have in the foreseeable future;
3. The financial needs and resources of the beneficiaries of the estate, or which such beneficiaries are likely to have in the foreseeable future;
4. The financial needs and resources owned by the testator to any applicant under the Act or to any beneficiary of the estate;
5. The obligations and responsibilities owed by the testator to any applicant under the Act or to any beneficiary of the estate;
6. Any physical or mental disability of any applicant for an order or any beneficiary; and
7. Any other matter which the court may consider relevant, including the conduct of the applicant or the testator.

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