For a general overview of the 1975 Act please see our related blog [link to blog on Inheritance (Provision for Family and Dependants) Act 1975].

Who can bring a claim under the 1975 Act?

• a spouse or civil partner of the deceased;
• a former spouse or civil partner of the deceased who has not remarried or entered into a new civil partnership;
• co-habitants (if during the whole of the period of two years ending immediately before the date when the deceased died, the person was living in the same household as the deceased and as the husband or wife of the deceased);
• a child of the deceased (including adult children);
• a person treated as a child of the family; or
• dependants of the deceased.

How long do I have to bring a claim under the 1975 Act?

The Inheritance Act requires an application to be made within 6 months of the date of the Grant of Probate*.

Therefore, we would always advise that you seek immediate legal advice to determine whether you are eligible to make a claim.

It is possible to bring a claim after the 6 months has expired, but you will need permission from the court to do so which is entirely discretionary and usually dependent upon being able to justify delay with a good reason.

(*a deceased’s family member, friend or solicitor must apply for a Grant of Probate which gives them the right to deal with the deceased’s estate. Once the Grant is obtained, the appointed person can then begin to deal with the deceased’s assets including; property, bank accounts, personal items, debts and tax liabilities.)

What will the court take into account when determining financial provision?

In order to decide the amount of financial provision to be provided to any person making the claim the court must consider the following:

• the financial resources of the person making the claim;
• the deceased’s moral obligations to the person making the claim;
• the size and nature of the deceased’s estate;
• any physical/mental disability suffered by the person making the claim; and
• anything else which may be relevant, for example, the conduct of the applicant and the executors of the estate. For applicants, other than a spouse or partner, reasonable financial provision is limited to what it would be reasonable for them to receive for their maintenance only.

Who pays the legal costs of a claim?

It is important for anyone bringing or defending an inheritance claim to consider how much it will cost and how those costs will be paid.

The costs of an Inheritance Act claim will generally be paid either by the estate, or the party that loses. If agreement cannot be reached the court will decide.

Will I have to go to court throughout an Inheritance Act claim?

Going to court for claims under the Inheritance Act 1975 is the last resort. The vast majority of Inheritance Act claims settle well before the case gets anywhere near a court room.

Mediation is a common way of settling Inheritance Act claims, a process where an independent mediator is appointed to go back and forward between the parties, trying to assist them in reaching a settlement.

How do I make an Inheritance Act claim?

The first step in making a claim is to seek legal advice as soon as possible. Depending on individual circumstances, the next stage would be to collate evidence and financial information in order to set out the claim in detail in writing, with supporting documentation, and to identify what financial support is needed.

What is the executor’s role in Inheritance Act claims?

The executor owes a duty to all beneficiaries of the estate, and so are expected to maintain neutral in any Inheritance Act claims. They should not ‘actively defend’ any claims brought; this is the role of the main beneficiaries. So long as the executor remains impartial, they will generally be able to recover any costs related to the matter out of the estate.

Need advice on any of the issues raised in this article?

Whether you need to dispute a will or defend your inheritance, our specialised Contentious Probate Team will work with you to achieve the best result for you. You can contact the author, Allanah Hutchinson, on 01482 324252 or via email. You can find out more about the Wills & Probate team by clicking or tapping here.