Making a claim against a will

Making a claim against a will | Tuesday 14 September 2021 | 3 min read

Under English law, people are entitled to leave their assets to whoever they choose. However, it may be possible to bring a claim under the Inheritance (Provision for Family and Dependants) Act 1975 (1975 Act) if you do not stand to inherit anything or only very little from the Estate.

The 1975 Act enables the following categories of people to make a claim for reasonable financial provision from the Estate:

• Spouses;
• Civil partners;
• Cohabitees (provided they lived with the Deceased as if they were married/civil partners for two years immediately before the death);
• Former spouses or civil partners who have not remarried/entered into a new civil partnership (depending on the terms of settlement following the divorce/dissolution);
• Children of the deceased;
• People who were treated by the deceased as a child of the family such as a stepchild; and
• People who were being maintained (i.e. financially supported) by the deceased immediately before their death.

The Court will first consider what provision (if any) is already made for the applicant under the Deceased’s will (or under the intestacy rules if there is no will). If this is not considered to be reasonable financial provision, the Court has a wide discretion to change the way in which the Estate is distributed in order to correct this.

In 1975 Act claims, the Court has to weigh up a number of factors including:

• The current and future financial resources (both income and capital) of both the applicant and the beneficiaries of the Estate;
• The current and future financial needs of both the applicant and the beneficiaries;
• The size and nature of the Estate (in other words, the sort of assets that it comprises of);
• Any mental or physical disabilities of the applicant and the beneficiaries;
• Any obligations that the deceased had assumed towards the applicant and to the beneficiaries;
• In the case of a claim by a spouse or civil partner, the age of the applicant, the length of the marriage/civil partnership and the applicant’s contribution to the welfare of the deceased’s family; and
• Any other matter that the Court may consider to be relevant – such as the conduct of any party.

If your 1975 Act claim is successful, the Court can make a wide variety of orders to ensure that reasonable financial provision is made. These include a lump sum cash payment, payment of a sum of money each month or the transfer of an asset such as a house. We can advise on what you could expect to receive if your claim is successful.

As a rule of thumb, spouses and civil partners can expect a much more generous award than other categories of claimant because their claims are assessed differently.

Be aware that a claim under the 1975 Act must be issued with the Court within six months of the date of the grant of probate. You therefore need to act quickly so please do not hesitate to contact us.

Read our full wills and probate FAQs articles here. 

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  Clare
  Mackay Legal Director
  Commercial Litigation & Dispute Resolution Team

  • Phone 01727 798 025
  • Mobile 07702 718 706
  • Email clare.mackay@salaw.com
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