Claims under the Inheritance (Provision for Family and Dependants) Act 1975
English law gives individuals wide freedom to decide who benefits from their estate. However, that freedom is not always absolute. Where a will or the rules of intestacy fails to make reasonable financial provision for certain close family members or dependants, a claim may be brought under the Inheritance (Provision for Family and Dependants) Act 1975 (“the 1975 Act”).
Who can bring a claim?
Only specific categories of people are entitled to apply, including:
- A spouse or civil partner (or former spouse/civil partner who has not remarried)
- A child of the deceased (including adult children)
- Someone treated as a child of the family
- A cohabiting partner who lived with the deceased for at least two years before death
- Anyone who was being financially maintained by the deceased immediately before their death
Eligibility alone is not enough – the court must also be satisfied that reasonable financial provision has not been made.
What is “reasonable financial provision”?
For most applicants, this means provision for maintenance only such as what is needed to meet everyday living expenses at an appropriate standard. Spouses and civil partners are treated differently: the court can award what would be reasonable in the circumstances of a divorce (often referred to as the “deemed divorce test”).
Importantly, the court is not concerned with fairness in a general sense. A will can be harsh or unfair without being unlawful. The key question is whether the claimant’s financial needs have been reasonably met.
What factors does the court consider?
Section 3 of the 1975 Act sets out a non-exhaustive list of factors, including:
- The financial resources and needs of the claimant and any other beneficiaries
- The size and nature of the estate
- Any obligations or responsibilities the deceased had towards the claimant
- Any physical or mental disabilities
- The conduct of the parties (in appropriate cases)
Each case turns very much on its own facts, and there is no automatic hierarchy between claimants.
Time limits are critical
A claim must usually be issued within six months of the grant of probate. Late claims are possible, but only with the court’s permission, and should not be relied upon.
Final thoughts
1975 Act claims can be complex, fact-sensitive and emotionally charged. Early advice is crucial both for potential claimants considering their position and for executors or beneficiaries facing a claim. In many cases, careful negotiation can avoid the need for contested court proceedings.
If you would like help determining whether a claim may be available or how best to respond to one, please do not hesitate to contact our Litigation Department for assistance.
