Inheritance Act Claims

What is an Inheritance Act Claim?

Inheritance Act claims can be made under the Inheritance (Provision for Family and Dependants) Act 1975 (IPFDA or the Inheritance Act) when someone believes they have not received reasonable financial provision from a deceased person’s estate. These claims are also known as “family provision claims” or “1975 Act claims” and can be made whether the deceased left a will or died intestate (without a will).

Who Can Make an Inheritance Act Claim?

The Inheritance Act allows certain categories of people to make a claim against the estate, including:

• the spouse or civil partner of the deceased;
• former spouses or civil partners who have not remarried or formed a new civil partnership;
• children of the deceased, including adopted children or children who were treated as a child of the deceased’s family;
• anyone who was being maintained, wholly or partly, by the deceased immediately before the death of the deceased; and
• cohabitants of the deceased who lived in the same household as the deceased for the two year period before the deceased’s death.

The spouse or civil partner of the deceased is entitled to claim against the estate for provision required for their maintenance and for further financial provision if it is reasonable in all the circumstances.

Former spouses or former civil partners of the deceased can make a claim against the estate for reasonable provision for their maintenance, so long as they have not remarried or formed a new civil partnership.

Children of the deceased (including adult children, as there is no age limit) can make a claim against the estate for reasonable provision for their maintenance. Any individual who has been treated as a child of the family is also able to make a claim.

Individuals who were being maintained by the deceased immediately before the death of the deceased can make a claim against the estate for reasonable provision for their maintenance. A person may have been “maintained” by the deceased if the deceased paid for their living expenses or education or provided accommodation, food or an income to the individual.

Cohabitants of the deceased can make a claim against the estate if they lived in the same household as the deceased for the two year period before the deceased’s death and they and the deceased lived as if they were a married couple or civil partners.

What is Reasonable Financial Provision?

There are two standard of reasonable financial provision depending on the status of the claimant.

1. For claimants who are the spouse or civil partner of the deceased, the provision required is based on what it is reasonable for the claimant to receive “in all the circumstances, whether or not that provision is required for maintenance.”
2. For any other claimants, the claim can only be such provision as would be reasonable for them to receive “for their maintenance.” This is known as the “maintenance standard” and is clearly a lower standard of provision than for spouses/civil partners.

“Maintenance” is not defined by the Inheritance Act, but the courts have defined it as financial provision that would be reasonable for the claimant to live on. The claimant should not be afforded a luxurious lifestyle but neither should it be the bare minimum required to survive.

The court considers what is reasonable in all the circumstances of the case, rather than what the deceased should have provided or what might seem fair emotionally. The court balances the claimant’s resources and needs against the deceased’s wishes and the interests of other beneficiaries of the estate. The court will also consider the size and nature of the deceased’s estate as well as the resources and needs the claimant is likely to have in the foreseeable future.

If the claimant has a physical or mental disability, the court will take this into account when making its decision. For example, if the deceased was paying for full-time care for a disabled child but made no provision to continue this in their will, the court would be likely to order that the estate continue to provide such care.

Grounds for Making a Claim

A person may have good grounds for making an Inheritance Act claim if reasonable financial provision has not been made for them by the deceased’s will or under the intestacy rules. The court must consider the statutory guidelines set out under Section 3 of the Inheritance Act, which include:

• the financial resources and needs of the applicant (both current and future);
• the financial resources and needs of other beneficiaries;
• any obligations and responsibilities the deceased had towards the applicant or beneficiaries;
• the size and nature of the estate;
• any physical or mental disability of the applicant or beneficiaries;
• any other relevant matter, including the conduct of the applicant or others.

For claims by spouses or civil partners, there are additional considerations, including:

• the age of the applicant and the duration of the marriage or civil partnership; and
• contributions to the welfare of the family of the deceased.

For claims by children of the deceased, the court will also consider the way the child was being or might expect to be educated or trained.

All relevant section 3 factors must be considered and given equal weight.

Time Limits for Inheritance Act Claims

There is a strict time limit set by section 4 of the Inheritance Act. Claims must generally be brought within six months from the date of the Grant of Representation (probate or letters of administration). The Grant of Representation is a legal document obtained from the Probate Registry which proves that a person has authority to deal with a deceased’s estate.

It is possible to apply to the court for permission to bring a claim out of time, but this is at the court’s discretion and is difficult to obtain. The court will consider the reasons for the delay, whether negotiations occurred within the time limit and the effect of delay on the estate and other beneficiaries.

It is very important to take legal advice early and act promptly for Inheritance Act claims as an application out of time will usually be rejected by the court.

The Inheritance Act Claims Process

Before bringing a claim, a potential applicant and their advisers should gather evidence about the estate and the individual’s circumstances. There should be an attempt at negotiation with the executors or administrators of the estate and a letter before action should be sent.

When issuing an Inheritance Act claim, the claimant must include a witness statement in support, with any evidence they intend to rely on. The claim should be served on interested parties, including the beneficiaries and personal representatives of the estate. The defendants must acknowledge service of the claim and may file a response to the claim with any evidence they intend to rely on.

The case will proceed to a directions hearing, at which the court will give directions for the case including a date for a final hearing.

After proceedings have been initiated, an interim application may be required, for example to prevent the Grant of Representation being obtained without notice or to prevent distribution of the estate.

While proceedings are ongoing, the parties should also consider alternative dispute resolution (ADR) to settle the claim. Many cases settle before trial, particularly through mediation.

How Successful are Inheritance Act Claims?

The likelihood of success for an Inheritance Act claim depends heavily on the individual circumstances and strength of each claim. Claims are more likely to succeed if:

• the claimant has strong evidence of financial need;
• the claimant was clearly dependent on the deceased;
• the size of the deceased’s estate is substantial;
• there is weak justification for the provision (or lack thereof) in the will.

Claims are less likely to succeed if:

• there is already adequate existing financial provision;
• the claimant has substantial personal resources;
• the claimant estranged themself from the deceased;
• the size of the deceased’s estate is small;
• there are valid reasons for the deceased’s testamentary choices.

As many cases settle before trial, “success” often means a negotiated compromise rather than a full court victory.

Defending an Inheritance Act Claim

Executors, administrators and beneficiaries may be served an Inheritance Act claim. We can advise on the options available for responding, including negotiating a settlement and defending the claim fully through the courts.

Defences to an Inheritance Act claim may include that:

• the will or intestacy already makes reasonable provision for the claimant;
• the claimant does not fall within an eligible category;
• the claim is out of time; and
• the size of the estate is insufficient to make any award.

Executors and administrators have a duty to consider any claims seriously and to act in the best interests of the estate. This will often require them to remain neutral, while ensuring the court has all the information it requires. It is important for the executors or administrators to preserve the estate assets and not distribute them before the time limit for an Inheritance Act claim expires.

Costs of Inheritance Act Claims

In addition to the court fee for issuing a claim, a party to litigation will also have to pay the legal fees of their solicitors and barrister. Legal fees are typically charged on an hourly rate basis, but fixed fees can sometimes be agreed for certain stages of the process.

There are significant costs risks associated with bringing or defending a claim, as there is a general rule that the unsuccessful party pays the successful party’s costs. However, the court has discretion as to costs, especially in family provision cases. This could include costs being paid out of the estate, particularly for unsuccessful but reasonable claims.

It is important to get early advice about the potential costs of a claim any funding options available.

Settling Inheritance Act Claims

The majority of Inheritance Act claims settle before trial. In comparison with proceeding to trial, settlement usually enables:

• certainty of outcome;
• faster resolution;
• reduced legal costs;
• preservation of family relationships; and
• privacy (by avoiding a public court hearing).

Settlement can be achieved through a variety of methods, including direct negotiation between solicitors, round-table meetings and mediation. Settlements can then be formalised by a court order or a deed of variation.

FAQs

Can I make an inheritance act claim if I’m an adult child who was financially independent?

Yes, adult children can claim regardless of financial independence, but financial independence is a factor the court will consider when assessing whether the will made reasonable provision. The court looks at all the circumstances including the adult child’s relationship with the deceased, any moral obligations, and competing claims on the estate.

What happens if the estate has already been distributed before I make my claim?

If the estate has already been distributed, it creates significant complications for a claim. You may still be able to bring a claim, but recovering assets that have been distributed to beneficiaries is much more difficult. This as a key reason why the 6-month time limit is strict and why early legal advice is crucial.

Can I claim if I lived with my partner but we weren’t married?

Cohabitees can claim but must have lived with the deceased “as husband and wife” or “as civil partners” for at least two years immediately before death. The court will look at factors such as financial interdependence, public acknowledgment of the relationship, and stability. Cohabitee claims are for maintenance only, not the higher standard available for spouses or civil partners.

How long do inheritance act claims take?

A realistic timeline from initial advice to settlement is typically 6-12 months if the dispute is settled early, potentially 12-24 months if proceedings are issued, and possibly longer if the case goes to trial. Much depends on whether the parties are willing to negotiate and exchange information promptly.

Note that the 6-month time limit is for starting the claim, not concluding it.

Will I have to go to court?

Most inheritance act claims settle without a final trial. Even if court proceedings are issued, this is often a step in the negotiation process. Court appearances might be limited to case management hearings rather than a full trial. However, once a claim has been issued, you must be prepared for the possibility of trial if a settlement cannot be reached.

Can the executor refuse to provide information about the estate?

Before proceedings are issued, executors have discretion about disclosure but should act reasonably. Once proceedings are issued, there are formal disclosure obligations which we can advise you on. Persistent refusal to provide information may support an application for disclosure or be viewed negatively by the court. Beneficiaries generally have the right to information about the estate.

Can I make a claim if the deceased lived abroad or had assets overseas?

Generally, the deceased must have been domiciled in England and Wales, or had assets here, for the English court to have jurisdiction. This is a complex area requiring specialist advice, especially for international estates with assets in multiple countries or where the deceased had connections to different jurisdictions.