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Inheritance Claims for Family and Dependants
Inheritance claims for family and dependants
The law in the UK starts from the long established principle that an individual is entitled to dispose of their estate as they see fit. Unlike in some other countries, there is no law of forced heirship which dictates how an estate should be inherited; usually among close family members. However, the UK courts have a limited power to make orders which interfere with the effect of a will (or the effect of the intestacy rules where there is no will) where there is judged to be a failure to make reasonable financial provision for a defined class of people connected to the deceased. If a family member of, or someone who was dependent upon, a deceased person has not been reasonably provided for within a will, or under the rules of intestacy, they may be able to ask the court to make a range of orders to meet their reasonable financial needs.
Who can make an application?
The following persons can apply to court, for financial provision, against the estate of a person domiciled in England and Wales at the time of their death:
- Spouse or civil partner; and
- Former spouse or civil partner (if they have not married/entered into a civil partnership or otherwise compromised their claims).
The following persons can make an application if they can show that for a period of a whole 2 years ending immediately before the death of the deceased that they were living in the same household:
- Dependent child/ren;
- Person to whom the deceased stood in the role of a parent at any time; and/or
- Person who, immediately before the death, was being maintained by the deceased either wholly or in part as if they were married couple / civil partners.
What application can be made?
The applicant can apply for ‘reasonable financial provision’ to be made for them from the deceased’s net estate, manifest in periodical payments, lump sum payments and/or a transfer of property.
It is for the applicant to prove that reasonable financial provision has not been made, and that it is required to meet their needs. The court will make the decision based on the objective facts, rather than on the principles of fairness or morality, and will have primary regard to the following matters:-
- The financial needs and resources available to the applicant/s and beneficiary of the estate;
- Obligations and responsibilities which the deceased had towards any applicant;
- Size and nature of the net estate;
- Physical and/or mental disability of any applicant; and
- Any other matter, including conduct, which the court considers relevant.
If the applicant is a surviving spouse or civil partner of the deceased, they can claim at a higher maintenance standard which is whatever is necessary for their maintenance in all of the circumstances. This is significant because with spouses and civil partners, the court can take into account the standard and style of living and reasonable expectations of the applicant, including what they might have expected to get if the relationship had ended with divorce instead of death, and that may well exceed what they need for their day to day maintenance.
For persons falling into the other categories, it has been said that this standard means the applicant should be able to live ‘at neither a luxurious nor poverty stricken level.
It is helpful, at the outset, to make a list of the assets, liabilities and income needs to determine if an award from the net estate is required to meet those needs.
What is the process for making a claim?
Before an application can be made court the claimant should take some preliminary steps with a view to identifying the issues and, if possible, reaching an agreement.
- The claimant should:
- Set out, in writing, their claim for financial provision against the matters listed above, and enclose details of their own financial resources.
It should be noted that, in responding, the defendant (being the other beneficiary/ies) does not need to disclose their own financial resources but, if they do not do so, they will be unable to argue a ‘needs based’ defence if the matter goes to court.
- Identify, if possible, the amount that they are seeking and how it should be made.
- The personal representatives must disclose all evidence of the net estate.
Preferably, before an application is submitted the parties should also consider attending mediation to discuss the issues and/or apply to court for a non-binding judicial evaluation and/or financial dispute resolution hearing.
If an agreement cannot be reached, then a claim form must be issued no later than 6 months from the date of the grant of representation. This is an absolute non-extendable deadline. The claim must set out the nature of the claim, and include a statement and documents enclosing all the evidence that they will be relying upon.
Ultimately, claims for reasonable financial provision from the net estate of a deceased person is a complicated process and, if you are contemplating, or facing the prospect of defending, an application we recommend that you speak to a member of our Family Team for specialist legal advice.
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If you would like a no obligation discussion, please feel free to contact us either by phone on 02920 345511 or emailing us below.