- June 9, 2020
- 0 comments
Obtaining a legacy where there is no will or if you have been left out of a will
If a relative, loved one, or someone you have cared for, has died without leaving a will, or having left a will which makes either no provision or, in your view, insufficient provision for you, you may still be able to claim a legacy or greater legacy from their estate. The Inheritance (Provision for Family and Dependants) Act 1975 (“the Inheritance Act”) provides a statutory basis on which a spouse, partner, family member or dependant of a person who has died can make a claim against the deceased’s estate in these situations. In other words, you can bring a claim under the Inheritance Act if you seek to become either a beneficiary or a larger beneficiary and, in doing so, bring about a redistribution of the estate.
As things currently stand, the classes of persons entitled to bring a claim under the Inheritance Act are as follows:
- A surviving husband, wife or civil partner;
- A former husband, wife or civil partner who has not remarried;
- A person who has cohabited with the deceased for at least 2 years immediately prior to his or her death;
- A child of the deceased;
- A child of the family; and
- Any other person treated as a dependant.
In a claim brought by a surviving spouse, the court will often have regard to what the applicant would have received had the marriage or civil partnership ended in divorce or dissolution, rather than death. Whilst a marriage or civil partnership which has only been of short duration at the time of death can result in a smaller award, the premature termination of a marriage or civil partnership by death is likely to be less important than it would be in a divorce.
A claim by a former spouse can be difficult to justify as any existing divorce settlement can usually be expected to have made provision for them. There can, however, be exceptions, such as where inadequate provision was made for the former spouse, or where the couple have moved back in together, or where the divorce settlement provided for the claimant to receive periodical payments.
For a claim to be made by a cohabitee, they must have lived together in the same household for at least 2 years and lived as husband and wife, or as civil partners, in an acknowledged relationship. The 2-year period must be unbroken.
Claims can be made on behalf of children who are minors as well as adult children. Claimants can include adopted children, although adopted children cannot usually make claims against the estates of their natural parents. Claimants can also include a person who was treated by the deceased as a child of the family, either as a result of a marriage or civil partnership which the deceased had entered into, or as a result of the deceased standing in the role of parent. Awards made to children will vary enormously depending on their age (with younger children, with more years until they reach adulthood, being deemed to have a greater need), the size of the estate, and the intentions of the deceased. Claims by adult children can be more difficult to prove although the court will take into account the same factors as it will when considering the claims of other categories of claimant (as to which see below).
A person may be able to make a claim as a person “treated as a dependant” even if they did not have one of the relationships with the deceased identified above. A person claiming as a dependant, however, will only succeed if the deceased, until the time of their death, had been making a substantial financial contribution towards the claimant’s maintenance. This does not include financial contributions made by the deceased pursuant to a commercial arrangement, such as salary payments made to a professional carer or housekeeper. My colleague, David Wedgwood, looks at legacies for carers in more detail in his separate blog.
For persons falling into the above categories of claimant, there is no automatic right to financial provision. Any claim brought under the Inheritance Act will require the court to carrying out a balancing exercise involving, amongst other things, an analysis of the relationship which the claimant had with the deceased, and a weighing up of the size of the estate and the competing needs of the claimant and any other beneficiaries of the estate. Further, as a first step, there are two basic criteria which must be satisfied in order for a claim to be made. They are:
- The deceased must have been domiciled in England and Wales at the time that they died; and
- Court proceedings brought under the Inheritance Act should be issued not more than 6 months of a grant of representation (i.e. grant of probate or letters of administration) by the Probate Registry. The court can, however, and frequently does, extend this limitation deadline although this cannot be relied up. See my separate blog which considers recent cases from the last year on extensions of time sought for bringing Inheritance Act claims.
If you require any advice on any of the issues raised in this blog, please contact us on 020 7940 4000 or Oliver.Jackson@anthonygold.co.uk.
*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.*