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Published On: October 7, 2015 | Blog | 0 comments

More opportunities for non-biological children to bring claims under the Inheritance (Provision for Family and Dependants) Act 1975.

The Inheritance and Trustees’ Powers Act 2010 made a number of changes to the provisions of the Inheritance (Provisions for Family and Dependants) Act 1975 (“the 1975 Act”), under which disinherited family members may bring claims for a share of the estate. In many respects, the changes mean that claims brought under the 1975 Act ought to be easier. This is definitely the case in cases of children wanting to bring claims relating to the estate of their non-biological parents.

Under the original 1975 Act (i.e. before the amendments from 2010) a child who was not a biological child of the deceased could apply for a provision under the Act, provided the deceased was married to the biological parent of the child and treated the child as a child of the family.

To establish if the child was a child of the family, the court will examine the nature of the relationship between the step-parent and the child. It was the quality of the relationship that was important. From case law (Re Leach) we know that mere “displays of affection, kindness and hospitality” was not sufficient. What is needed was for the step-parent to assume the position of a parent “with the attendant responsibilities and privileges of that relationship”. It is up to the child to show the active involvement of the step-parent in their life. A successful example is from the case of Re Callaghan, where the step-child looked after an infirm step–parent.

The changes introduced by the Inheritance and Trustees’ Powers Act 2010 widen the category of non-biological children able to bring claims under the 1975 Act. It is no longer necessary for there to be any marriage.  Anyone, in respect of whom the deceased assumed the role of a parent, may bring a claim. This opens up the door for those who were parented by their grandparents, aunts and uncles or anyone from outside the family or by a non-married homosexual or heterosexual couple, as well as those brought up by a single, non-biological parent.

What is important is that the Claimant is able to show they were treated as a child of the family. To this end, the examples from old case law relating to the quality of the relationship with the child would be persuasive.

The new provisions apply also only to the estates of those who passed away after 1 October 2014.

* 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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