If a loved one, or someone you were financially dependent on, has died and either left you out of their will entirely or failed to make adequate financial provision for you, then it may be possible for you to get the terms of the will varied so that appropriate provision is made. This may also be possible where no will exists.
To claim financial provision or an increase in what you have already been left, you will usually need to meet the requirements of the Inheritance (Provision for Family and Dependants) Act 1975. Lisa Waghorne, civil litigation lawyer with Morlings in Maidstone explains the qualifying criteria and why you should seek legal advice to ensure you receive your fair share.
Who can apply for provision?
You can make a claim under the Inheritance Act if you:
- are the spouse or civil partner of the person who has died;
- are a former spouse or civil partner, provided you have not remarried or entered a new civil partnership;
- lived together with the deceased person for at least two years before they died and as though you were married or in a civil partnership;
- are the biological child of the deceased person or were treated by them as though you were their child; or
- were financially maintained by the deceased person before their death.
How much could I get?
The amount of financial provision that might be made for you will depend on your circumstances, your relationship to the person who has died and the amount of money and property they left behind.
Spouses and civil partners can be awarded whatever is reasonable in the circumstances, which may be significantly more than they actually need to live on if the deceased was wealthy.
This is in contrast to the position of anyone else making a claim because they can only seek financial provision which is required to meet their daily living costs, which the highest court in the UK has confirmed should not be limited only to what you need to stay alive but equally should not extend to anything or everything it would be desirable for you to have.
When deciding whether (and if so how much) financial provision should be made, the court will consider a range of factors, including:
- the value of the deceased person’s estate;
- the financial resources and needs of those named in the will;
- your financial needs and resources, and those of anyone else seeking to make a claim;
- any mental or physical disability suffered by anyone named in the will;
- any mental or physical disability you, or anyone else making a claim, may have;
- the reasonableness of the deceased person’s decision not to make financial provision for you or to only leave you a limited amount; and
- your conduct in the matter and the conduct of everyone else involved.
For obvious reasons the court cannot award you anymore than the estate of the deceased person can afford to pay.
Why do I need a solicitor?
If you are not a blood relation or were not married or in a civil partnership you will need a solicitor to assess your circumstances and confirm whether a claim may be possible and also to advise you on how much support you are likely to receive.
In any case where a claim for provision may be possible your solicitor will help you to try to negotiate a deal with the people appointed to manage your loved one’s affairs, known as executors or personal representatives, and also those who currently stand to benefit from the will and whose entitlement will be reduced if your claim is successful.
Initially a letter may be sent outlining your position and asking for proposals to ensure your needs are met. If agreement cannot be reached an independent mediator may be able to help. If mediation is used your solicitor will support you throughout to ensure any proposals to settle your claim that are suggested during the mediation process are fair and reasonable.
As a last resort, you may be advised to make a claim at court. In this case your solicitor will prepare the necessary paperwork, compile the required evidence and ensure your case is properly presented when it comes before a judge. If you are successful, your solicitor will also do their best to ensure that you recover as much of your legal fees as possible.
If you are thinking about making a claim under the Inheritance Act, please contact Lisa on 01622 673081 or email lisa.waghorne@morlings.com to find out how we can help.
The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice. The law may have changed since the article was published. Readers should not act on the basis of the information included and should take appropriate professional advice upon their own particular circumstances.