It is a devastating time for family and friends when a loved one passes away. Feelings of grief however can soon turn to spite when they realise they have been written out of a ‘Will’ or not inherited as they expected to.
A plethora of reasons exist for someone not being provided for in a Will, including not having spoken to the person for some time, strained relations with a child, separation from their husband or even a young person already being very wealthy themselves and not in need of the inheritance. The truth be told, is that there can be many reasons, dare we say normal or even slightly odd, for the testator wanting to exclude someone from their Will.
Excluding someone from a ‘Will’ can cause problems within the family and where inheritance disputes occur and matters can become very contentious.
This particular article will focus on the claim which can be brought under the: ‘Inheritance (Provision for Family and Dependants) Act 1975’ for ‘Reasonable Financial Provision’.
Which person can challenge a ‘Will’ for provision?
Even though everyone has ‘Testamentary Freedom’, (i.e. they can dispose of their estate on death however they wish), there are certain sectors of people who would expect to receive something from the estate. Hitherto, certain relatives and dependents can claim under the ‘Inheritance (Provision for Family and Dependants) Act 1975’ on the grounds that the distribution of the estate does not make reasonable financial provision for them.
The division of those who can make a claim are set out in six categories below:-
- A spouse or civil partner
- A former spouse or civil partner – (they must not have married or registered a new civil partnership)
- A person who cohabited with the deceased as husband and wife for two years prior to the deceased’s date of death.
- A child
- A child treated as a ‘child of the family’ (e.g. stepchild, children, a guardian to a young person)
- A person maintained by the deceased.
What are the Conditions required for Bringing a Claim?
These following conditions must be adhered to for there to be a successful application under the Act, these are:-
- The deceased must have died domiciled (Living in a particular country) I.e. England or Wales
- The application must be made within six months of the ‘Grant of Probate’ being taken out
- The applicant must fall within one of the six categories mentioned above, of who can bring a claim under the ‘Inheritance Act 1975’
- The deceased’s ‘Will’ or ‘Intestacy’ must have failed to have made reasonable financial provision for the applicant.
In summary:
If the beneficiary or applicant can evidence that they were either,
- A) Financially dependent on the deceased and that an ‘insufficient share’ of the estate or ‘monies’ was left to them, or
- B) That they fall into one of the categories of ‘Family Member’ and ‘reasonable provision’ has not been made for them, they can then bring a claim under the – ‘Inheritance (Provision for Family and Dependants) Act 1975’.
What Happens in the case of when a Will is Contested?
The Court will take into account the following ‘guidelines’ when considering a claim brought under the 1975 Act:
- The ‘Financial Needs’ and ‘Resources’ of the beneficiaries and applicants (if they are not in the ‘Will’ (a beneficiary)
- Any ‘Obligations’ and ‘Responsibilities’ which the deceased had towards any beneficiary or applicant
- The size and nature of the ‘Net Estate’ of the deceased
- Any ‘Mental’ or ‘Physical Disability’ of the beneficiary or applicant
- Any other matter which the Court may consider ‘Relevant’
When the Courts are considering claims brought by a spouse or civil partner, they will consider the (i) Age of the applicant and (ii) Duration of the marriage or civil partnership along with any (iii) Financial and other contributions made by the application for the welfare of the family. The Courts will also consider if any ‘Provision’ has been made for the applicant in which they may have ‘Reasonably Expected’ to receive in the event the marriage or civil partnership had ended.
The test when considering the standard of provision is “such financial provision as it would be reasonable in all the circumstances of the case for the applicant to receive for his/her maintenance.”
If the applicant is successful, then the Courts will decide what award should be made. The ‘Will’ remains valid, but the way assets are distributed will be varied by the Court to make arrangement for the applicant. This varies case by case as to what award is appropriate and will depend on (i) the circumstances of the applicant, (ii) the size of the testator’s estate, and (iii) what assets are available.
Tips for Will Writers:-
- Establish the ‘Testator’ is of sound mind at the time of taking the instructions
- Establish there are no concerns of undue pressure upon the ‘Testator’
- Attain the reasons for the ‘Exclusion’ and incorporate this in a ‘Letter of Wishes’ – it is best to include as much information as possible in the event the ‘Will’ is ever contested, as the Courts will seek to rely on the content in the ‘Letter of Wishes’
- Advise the client of a ‘Risk of a Claim’ under the ‘Inheritance Act 1975’ and establish they understand this
- Ensure detailed notes are taken of the meeting along with the advice given – (this is to protect you)
When compiling and writing the ‘Will’ itself, ensure an ‘Exclusion Clause’ is included in the ‘Will’. This makes it abundantly clear that the testator intended to make the ‘Exclusion’ and that it was not a dereliction of duty.
For clarification of anything discussed in this article and for further information, please email or telephone the office and we will gladly assist you with your query.
If you would like any further advice, please do not hesitate to contact us:
3C Legal Limited
Fax: +44 (0) 1684 294865
Mobile +44 (0) 7707 644738
info@3clegal.co.uk