Losing a loved one is a difficult and emotional time and it can become all the more upsetting if you have been left out of a Will when you otherwise might have expected to be included, or perhaps a Will was never made, meaning that the estate may pass to someone the deceased may never have intended to benefit, leaving you in financial difficulty.
In cases where the deceased person’s Will or the rules of intestacy fail to make “reasonable financial provision”, it may be possible to make a claim under the 1975 Act.
Who can claim?
There are certain categories of people who may be entitled to make a claim including spouses/ civil partners, former spouses/ civil partners (provided that they have not remarried or entered into a subsequent civil partnership), cohabitees, adult children, infant children, as well as those who were treated as a child of the deceased (including as a step-child, adopted child or foster child) and those who were financially dependent on the deceased.
What can I claim for?
Most categories of applicants can claim for their reasonable maintenance, for example, if you were financially dependent on the deceased during their lifetime it may be reasonable to expect the deceased to have provided for you on their death. However, this is limited to what is needed for your maintenance, particularly where there are other beneficiaries of the estate, or if the estate is not particularly large.
Whereas if you are a spouse/ civil partner then the rules are much more generous and it is possible to make a claim for reasonable financial provision. This is based on what would be reasonable for a spouse/civil partner to receive rather than just what is needed for their maintenance.
How long do I have to bring a claim?
Applicants have six months from the date of the Grant of Probate in which to issue a claim so if you find that you have not been adequately provided for, please do contact us as soon as possible. While it is theoretically possible to still apply after the 6 months have passed, an application to court to apply out of time will be needed and is likely to only be granted with very good reason.
What will the court look at when considering my application?
The court will take into consideration various factors such as your financial situation and health, the financial situation and health of any other beneficiaries whose interest in the estate may be affected by your application, the size and nature of the estate and the conduct of the parties.
If the applicant is the spouse or civil partner of the deceased then the court will also consider other factors (similar to those in financial provision claims on divorce) including the applicant’s age, the length of the marriage/ civil partnership, any contributions by the applicant to the welfare of the family.
Also, when considering spousal claims, the court will look at the ‘divorce cross-check’ to assess what provision the applicant might reasonably expect to have received on a decree of divorce and compare this to what they stand to receive on the death of the other spouse/civil partner. This is particularly relevant to second marriages when a testator may have only left a second spouse a life interest in the family home with the remainder going to their children from a previous relationship.
However, every case is different and the case law in this area shows that judges’ decisions vary greatly depending on the specific facts and circumstances of each individual case, which is why it is useful to seek advice on the merits of a potential claim as early on as possible.
What evidence will I need to support my claim?
Be prepared to provide information about your finances at an early stage as the personal representatives of the estate and the court will need this information to assess your claim. This can be intrusive but full financial disclosure of your financial needs and resources is necessary and this may include providing evidence of earning capacity, level of income and outgoings, any benefits received such as copies of bank statements, mortgage statements, utility bills, wage slips etc.
It will also be useful to set out the nature of your relationship to the deceased and include any relevant supporting documentation (e.g. marriage, birth or adoption certificates), any evidence to show that you may have been financially dependent on the deceased or that the deceased assumed responsibility for you.
Will I have to go to court?
This is a possibility that potential claimants need to be aware of when considering making a claim for financial provision. However, it is not always necessary to go all the way to court with the majority of claims settling via alternative dispute resolution methods, such as negotiation or mediation, which can save the time, expense and stress of pursuing litigation through the courts.
What should I do if I think I have a claim?
Please do get in touch with us as soon as possible if you think you may have a claim and we would be happy to advise.
April Lyon | Solicitor | Litigation Department
Contact [email protected]