What does an Inheritance Claim include?

A claim made pursuant to the Inheritance (Provision for Family and Dependants) Act 1975 (“IPFDA”) is a claim made no more than six months after the Grant of Probate for the Estate in question has been issued. It is a claim for “reasonable financial provision” where the potential claimant has not been properly provided for, if at all, in the deceased’s Will. A potential claimant does not need to be missed out of the Will entirely to make a claim, a claim can be made if the potential claimant believes that their share is not enough to meet their reasonable financial needs. A claim made pursuant to the IPFDA cannot include a claim for specific items as it is a claim based on the “need” of the claimant.

Eligible Claimants include:

• The spouse/ civil partner of the deceased. There is a presumption that partners rely and provide for one another so it is not necessary to prove impecuniosity (the state of lacking finances or material possessions);
• The ex-spouse of the Deceased could bring a claim, however whether financial matters were concluded between the ex-spouse and the Deceased at the time of death would be considered;
• A cohabitee of the Deceased, however the cohabitee and Deceased would have to have been cohabiting for at least 2 years prior to the death of the Deceased;
• A biological child of the Deceased;
• Someone who was “treated as a child” of the Deceased; and
• Someone who was “maintained” by the Deceased.

Once a claim has been made, the Court would need to consider:

• The present and future finances of all claimants and beneficiaries;
• The obligations and responsibilities that the Deceased had to any potential claimant or beneficiary;
• The size and nature of the Estate;
• Any disabilities of any claimant or beneficiary; and
• Other matters, such as the conduct of any party to the dispute. Poor conduct can result in an award for costs to the other party.

The above list is not an exhaustive list of all considerations as every claim is at least slightly different, but the above list details the initial considerations that any Court would reasonably consider.

A claim made by a spouse

The Claimant and the Deceased must have been legally married at the time of death. The Court would consider what “reasonable provision” ought to be provided to the spouse. The age of the parties, length of the marriage, and the contribution to the “family life” would be considered. The Court may consider what would have been received by the spouse in the event of a hypothetical divorce.

The paramount consideration by the Court would be what is fair, right and reasonable in this case?

A claim made by an ex-spouse

A claim could be made by an ex-spouse if there is a “decree nisi” in place. This is where the parties are separated but not legally divorced. It would be unlikely to succeed in a claim where financial matters have already been settled as it would be presumed that the ex-spouse has already received what they are entitled to.

A claim made by a cohabitee

There is an onerous burden to evidence if a claim is made by a cohabitee. The claimant must have been living as “man and wife” with the deceased at the time of death and for the two continuous years prior to death. This means that someone who just shared a property with the deceased would not succeed in making a claim. The court may still want to see what contribution the claimant has made to the “family”.

A claim made by a biological child

There is a presumption that children will become independent of their parents after they come of age. There is no forced heirship in the UK, meaning you do not have to make provision for your children in your Will. What was expected for the child would be taken into account, such as education fees if the child is still in or is about to be in education.

It is important to note that a child of the deceased cannot claim on their estate if they have been legally adopted by someone else.

A claim made by someone who was “treated as a child of the deceased”

The Court would consider the length of time the claimant was maintained for by the deceased and what the reasonable future expectation of this would be. Important factors the Court would consider here would be whether the deceased knew the child wasn’t their biological child or if there was anyone else who also assumed maintenance for the claimant.

Claims made pursuant to the IPFDA 1975 can be quite complex and are a highly emotive field of law and so require specialist assistance.

For further advice and assistance please contact our Litigation and Dispute Resolution team on  01604 828282 / 01908 660966 or email info@franklins-sols.co.uk.