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Published On: September 19, 2011 | Blog | 0 comments

Increased Inheritance for those with greater needs

If a person dies without making a Will, on their death all their money and wealth (their estate) will be distributed in accordance with the intestacy laws. The rules have changed recently in an attempt to be fairer, but one size does not fit all. As such some people may nothing or not get as much as the deceased might have wished them to get.

Unfortunately, even with a Will an estate may not be distributed fairly. Various family members and dependants have a legal right to contest a Will. They can claim an entitlement to an inheritance or a better inheritance than planned.

The Inheritance (Provision for Family and Dependants) Act 1975 (the 1975 Act) allows claims for better maintenance to be brought by: spouses and civil partners, former spouses (provided they have not remarried), children (including half and adoptive children), unmarried partners who resided with the Deceased in the same household in a husband and wife – like relationship for at least 2 years prior to the deceased’s death and other persons who were wholly or partly maintained by the deceased;

The 1975 Act allows a Court for to redistribute an estate so as to make a reasonable financial provision for a Claimant.

A reasonable financial provision is defined in the 1975 Act as “such financial provision as it would be reasonable in all the circumstances of the case (…) to receive”. (s. 1(2) of the 1975 Act). What is reasonable will therefore be decided on a case by case basis by way of reference to factors such as: the Claimant’s own financial resources and financial circumstances both now and in he foreseeable future; any physical or mental disability of the Claimant any obligation or responsibility which the Deceased had towards the Claimant the financial resources and needs of any other beneficiary of the estate; the size and nature of the estate any other matter (including conduct of the Claimant), which the Court may consider relevant.

It is difficult to anticipate as to how far the Court may depart from provisions of the Will or the intestacy rules when making an award for a “needy” Claimant. The 1975 Act does specify that provision made for Claimants who are not spouses of the deceased must be limited to that required for their maintenance.

This does not however mean the maintenance requirements will be set at a minimum level of subsistence. In the past, payments have been ordered to discharge adult children of their debts and allow them to purchase properties (Re Callaghan). Another case set aside substantial capital for an adult, disabled child, even when they are in receipt of state benefits (Challinor v Challinor). A further case provided for purchase of a property in which an unmarried partner has a right to remain for life, despite the fact that the surviving partner was a home owner and rented out her own property at the same time (Cattle v Evans).

The provisions of the 1975 Act may seem unfair to those who have a very good reason to disinherit a particular member of their family. It is the case however that a Court will pay less weight to family grievances and instead concentrates on needs.

For further advice about challenging a will or making a claim under the Inheritance (Provision for Family and Dependants) Act 1975, contact our contentious probate team.

*Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.*

David Wedgwood

Head of Civil Litigation Joint Head of Court of Protection

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