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In England and Wales there are no rules providing for forced heirship. A person making a will has the freedom to benefit whoever they chose, subject to the Inheritance (Provision for Family and Dependents Act) 1975 (“the 75 Act”).
Under the 75 Act, the courts have limited powers to make orders that change the provisions of a will or amend the statutory rules governing Intestacy (where someone dies without making a will).
Who can claim?
Claimants must fall within a specific category to apply under the 75 Act and be;
- the wife or husband or civil partner of the deceased;
- a former wife or former husband or former civil partner of the deceased who has not remarried;
- a person who, for the two years prior to the death, was living with the deceased as if they were a spouse or civil partner;
- a child of the deceased, including an adopted child;
- an individual who was treated as a child of the family by the deceased;
- any person maintained by the deceased either wholly or partly immediately before death.
It is worth noting that adult children can bring successful claims under the 75 Act. The leading case on this is Ilott v Mitson which was eventually decided by the Supreme Court in 2011. In this case an adult child who had been estranged from the deceased was awarded a lump sum from the estate, despite being specifically excluded by the testator by a will and letter of wishes.
What factors does the court consider?
The court will consider a range of factors in deciding whether it is appropriate to make any award. These are set out in section 3 of the 75 Act and are;
(a) the financial resources and financial needs which the applicant has or is likely to have in the foreseeable future
(b) the financial resources and financial needs which any other applicant for an order has or is likely to have in the foreseeable future
(c) the financial resources and financial needs which any beneficiary of the estate of the deceased has or is likely to have in the foreseeable future
(d) any obligations and responsibilities which the deceased had towards any applicant or towards any beneficiary of the estate of the deceased
(e) the size and nature of the net estate of the deceased
(f) any physical or mental disability of any applicant or any beneficiary of the estate of the deceased
(g) any other matter, including the conduct of the applicant or any other person, which in the circumstances of the case the court may consider relevant.
What can the court award?
Firstly, the court will decide by reference to the section 3 factors above whether reasonable financial provision was made for the applicant in the will or Intestacy of the deceased.
The power of the court is limited to awarding what is reasonably necessary for the maintenance of the applicant. Generally, this will be taken to be at neither a luxurious nor poverty-stricken level.
Spouses or civil partners have a higher maintenance standard than other applicants and they can expect to receive whatever is necessary for maintenance in all the circumstances. This means that the award would factor in the standard and style of living that the applicant was accustomed to and what they may have expected to have been awarded by way of financial settlement if the relationship had ended in divorce. This will often result in a higher award than what would simply be required for day-to-day maintenance.
If the application is successful, the court can order:
- A lump sum payment from the estate
- Regular payments out of the estate
- The sale of a property
- The transfer of a property
- The granting of a lifetime right to occupy property
Bringing a claim or defending a claim as executor can be a lengthy and extremely stressful process. It is recommended that early legal advice is sought from a solicitor who understands the legislation. At CWJ we have experience of both bringing claims under the 75 Act and defending them. Although some cases can only be resolved following a contested hearing, we are able to settle many disputes via a negotiated settlement, or alternatively at mediation.
For more information, please contact Edward White on 01689 887831 or email edward.white@cwj.co.uk