Imagine the following situation. Your mother and father divorced and some years later your father remarries a woman who has two children from her first marriage. You all get on well, celebrating Christmas and other holidays together. Suddenly, your father, who was a prosperous man, passes away. As you are grieving, you learn that in his Will, he left everything to his second wife. You and your siblings (his only children) receive nothing. Even worse, it comes to your knowledge that your stepmother has changed her Will to leave everything, including the inheritance she received from your father to her children from a previous marriage. It is like you never existed in your father’s life.
We see this type of scenario all the time in our Wills and Probate dispute department. Clients are furious and believe they have been robbed. But they are also extremely hurt at the knowledge the spouse could have cut them out of their inheritance so completely and given their parent’s wealth and assets to step-children who they may hardly have known.
Unlike many legal jurisdictions (Scotland for example), England and Wales have no laws providing for forced heirship. English Courts have always been firm of the opinion that a Testator can leave their wealth to anyone or anything they wish. However, there are some cases where someone who is or should have benefited from a Will is left in real need due to lack of reasonable provision. The Inheritance (Provision for Family and Dependants) Act 1975, commonly known as the Inheritance Act 1975, is designed to provide recourse if you find yourself in the above situation.
What is a reasonable financial provision?
The first, and key, question to ask in all Inheritance Act 1975 claims is "has the deceased's estate made reasonable and financial provision for the class of the potential applicant by the standard applicable to that applicant?".
The power of the Court to grant relief under the Inheritance Act 1975 is limited to ordering only such provision as is reasonably necessary for the maintenance of the applicant. This standard means the applicant should be able to live ‘at neither a luxurious nor poverty-stricken level’. If the applicant is a surviving spouse or civil partner of the deceased, they can claim at a higher maintenance standard that takes into account the standard of living enjoyed by the applicant before the Testator died and considers what type of financial settlement the applicant would have received if the relationship had ended in divorce rather than death.
Who can claim under the Inheritance Act 1975?
Only those who fall into one of the categories below can make a claim:
- the spouse or civil partner of the deceased
- the former spouse or civil partner of the deceased (as long as that person has not remarried/entered into a subsequent civil partnership)
- a person who, for the two years before the death, was living with the deceased as if they were a spouse or civil partner
- a child of the deceased
- a person who was treated as a child of the family by the deceased
- any other person who was being maintained, wholly or partly, by the deceased immediately before their death.
Recent cases have often involved adult children claiming provision. One case that received considerable media coverage was Ilott v Mitson [2011] EWCA Civ 346. Here, an adult daughter, who had been estranged from her late mother for years was awarded £50,000 after her mother left all of her estate, which totalled £486,000 to several charities. On appeal, this was increased to £143,000. Although the Supreme Court reversed the Court of Appeal’s ruling and reinstated the High Court’s order of £50,000, the case showed that successful applications from adult children are possible, even if they had an estranged relationship with the deceased.
What factors will the Court consider when deciding claims under the Inheritance Act 1975?
When exercising its power under the Inheritance Act 1975 the Court must have regard to the following factors listed in section 3.
- the financial resources and financial needs which the applicant has or is likely to have in the near future;
- the financial resources and financial needs which any other applicant for an order has or is likely to have in the foreseeable future;
- the financial resources and financial needs which any beneficiary of the estate of the deceased has or is likely to have in the near future;
- any obligations and responsibilities which the deceased had towards any applicant or towards any beneficiary of the estate of the deceased;
- the size and nature of the net estate of the deceased;
- any physical or mental disability of any applicant or any beneficiary of the estate of the deceased;
- any other matter, including the conduct of the applicant or any other person, which in the circumstances of the case the Court may consider relevant.
If your application is successful, the Court can make a range of awards, including a lump sum or periodic payments, transferring property, or a lifetime right to live in a property with the property reverting to the estate upon the applicant’s death.
Concluding comments
Making an application under the Inheritance Act 1975 is not easy and you will need the advice and representation of an experienced Contentious Wills and Probate Solicitor who understands the limitations of the legislation. If you are not the surviving spouse or civil partner of the deceased, you can only claim what is required for reasonable maintenance. The Courts have made clear that the Act is not a tool to be employed by those who are merely unhappy with their share of an inheritance (or lack thereof). However, those who can demonstrate a genuine need have an excellent chance of success, which can usually be achieved outside the Courtroom through negotiation or mediation.
To speak to one of our Contentious Wills and Probate Solicitors, please email info@brethertons.co.uk or phone 01295 270999 (Banbury Office), 01869 252161 (Bicester Office), or 01788 579579 (Rugby Office).