Published On: November 2, 2015 | Blog | 0 comments

I should have got more! Claims for better provision out of English

“Madam, you must be wrong, I have looked after our father since our mother’s death 10 years ago until his very last days. My brothers did nothing. They cannot expect me now to move out of dad’s home and sell it leaving me with just 1/3”. I hear those words ever more often from bereaved and genuinely grieving clients, unable to comprehend that the world could be so unfair to them.

English law heralds the principle of testamentary freedom. Everyone can leave what they own to whoever they want. The law limits this freedom only slightly, to protect those who are vulnerable and particularly needy.

When your family member passed away domiciled (i.e. permanently resident) in England and their will or intestacy rules do not leave you with a provision that you consider sufficient, you may consider a claim under the Inheritance (Provision for Family and Dependants) Act 1975 (“the Act”). In order to bring a claim under the Act you must be either a wife, husband or civil partner of the deceased, former wife, husband or civil partner provided you have not re-married, a child or an adopted child of the deceased, a cohabitee living with the deceased in one household in a husband-and-wife-like relationship for at least 2 years prior to their death, or a person wholly or partly maintained by the deceased. You must show that what you are entitled to receive from the estate of the deceased is not reasonable and accordingly you are asking the court for a reasonable provision out of the estate. In case of all the categories of claimants with the exception of spouses only, the reasonable provision has to be needed for your maintenance.

The court will consider and decide what is reasonable by reference to a number of factors including: your needs and circumstances and those of the other beneficiaries, the size of the estate, any moral obligation the deceased may have had to you, any illnesses or disabilities that you or other beneficiaries may suffer with and other factors. In essence the court is running a subjective assessment of all the circumstances, before deciding if what you currently stand to receive is reasonable and if not, what would be the additional reasonable provision (in terms of monetary amount or e.g. right of occupation of a house etc).

In order to bring the claim in England, you do not need to be a British citizen. The deceased need not have been a British citizen. They do however need to have died domiciled in England. Domicile is a difficult concept over which there is much litigation. To over-simplify matters, you may start considering the claim and seek further advice on such possibilities when you know the deceased was resident in England and had assets here.

When a person dies not domiciled in England and Polish succession laws apply to their estate, the possibilities of claiming a greater provision are more limited. Depending on a situation, wife, children and parents of the deceased, when they have been totally left out of the will may apply for a share (zachowek). A person who is a minor or permanently unable to work may apply for 2/3 of what they would be entitled to on intestacy. A person who is over 18 and capable of work may apply for ½ of what they would receive on intestacy.

For advice on claims for a greater provision to be brought in England, please contact us.