- September 21, 2020
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Understanding Inheritance Claims: Obtaining a legacy
In today’s instalment of our Understanding Inheritance Claims series Oliver Jackson, Partner at Anthony Gold, gives an introductory blog outlining the categories of individuals who might be eligible to make a claim against an estate.
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 treated by the deceased as a child of the family; and
- Any other person maintained by the deceased.
In a claim brought by a surviving spouse, the usual starting point is that the court will have regard to what the applicant would have received had the marriage or civil partnership ended in divorce or dissolution, rather than death. In applying the same principles as would apply on a divorce, the court will start with an assumption of an equal division of the estate, unless there is good reason for departing from this (as it would in a divorce). Reasons for departing from the principle of an equal division include any economic disparity between the deceased and the applicant, for example if one of them has substantial non matrimonial property. The age of the applicant may be taken into account. A marriage or civil partnership which has only been of short duration at the time of death can also result in a smaller award, although 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 of the deceased 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. When considering the claim, the court will take into account such things as the age of the applicant, the length of time they had lived together with the deceased, and the contribution made by the applicant to such things as caring for the deceased, the welfare of the deceased’s family and maintaining the deceased’s home.
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. Awards made to children will vary greatly depending on their age and need. Infant children will generally have a much stronger claim, with the court taking into account their housing, child care and educational needs. The greater the number of years until they reach adulthood, the greater their need will be deemed to be. Account will also be taken of any evidence which exists as to the intentions of the deceased. Claims by adult children, in particular those who are able-bodied, will 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).
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. A child making a claim on this basis must be able to show that the deceased had “assumed responsibility” for them. In determining the claim the court will also take into account the liability of any other person to maintain the child.
A person may be able to make a claim as a dependant or “person maintained by the deceased” 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 they can again show that the deceased had assumed responsibility for them. Further, the financial contribution towards the claimant’s maintenance must be “substantial” and they must have been maintained by the deceased right up until the death of the deceased. Maintenance by the deceased, for the purposes of establishing grounds for bringing a claim, 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.
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, for claims made by anyone who is not a spouse or civil partner of the deceased (for example, for claims made by children, cohabitees or persons maintained), it is necessary to establish that financial provision is required for their “maintenance”. If they are not in need of maintenance, their claim will not succeed.
Finally, applicants will need to remember that, 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.
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.
Tune into Anthony Gold all week for our video and blog series which explores the ins and outs of Inheritance Claims. We will be releasing a new video or blog each morning as the series builds throughout the week. In tomorrow’s instalment Anthony Gold Partner, Beth Holden discusses applications of interim relief in Inheritance Acts claims.
*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.*
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