Provision for family and dependants

Claims under the Inheritance (Provision for Family and Dependants) Act 1975 rose by 72% in 2021. On top of this, the cost of living is not helping the increase.  

In general, the majority of claims for an award come from estranged children or spouses, but more often than not it is because the deceased has not amended his or her Will in accordance with their current family situation.

Many adult children make the mistake of believing they can challenge a Will on the basis that a parent should leave their estate to their children, or in the case of a co-habitee because they lived together as if they were married. The basic rule under English law is still that an individual can leave their assets to whoever they like.   However if a spouse, child, cohabitee or other dependant can show they have not been left adequate financial provision under the Will of a deceased person, a claim can be made under the 1975 Act.   When a claim is made under the 1975 Act the court Will consider all the relevant facts before deciding whether to make an award or not.

The 1975 Act can also be used to make a claim when there is no Will.  Here, the intestacy laws come in, which determine how the estates of those who die without having made valid Wills are distributed.  As these are not reflective of today’s relationships, cohabitees or civil partners will find themselves excluded and a claim under the 1975 Act may be the only option.

Where a claim is made under the 1975 Act, the court can exercise discretion and award reasonable financial provision out of the deceased’s estate, whether there is a valid Will in existence or not, but two recent cases highlight the challenges involved in predicting the outcome of such action.

For Miss A, who lived with her partner Mr B for seven years before his death, a claim for financial provision was successful. She was able to show they had lived as a couple and she had cared for him when his health failed, and that she had limited retirement income and nowhere else to live.  The estate had been left to Mr B's two daughters, who had insisted on selling the property the couple had shared, forcing Miss A to move in with her son.  The daughters challenged the claim, arguing that Miss A was just one of many girlfriends.  But the judge said their evidence lacked credibility and ruled that Miss A should receive regular payments to top up her pension income and a capital sum to enable her to buy a property, with the property reverting to the daughters upon her death.  

But when Miss C claimed that her father should have provided for her, instead of leaving his entire £1m estate to his second wife of 30 years, she was unsuccessful.  Her claim was based on having previously worked for one of her father’s businesses and his ongoing contribution to her maintenance; she argued that being left out of his Will left her facing crushing debts and a shortfall of £2,000 per month.  She claimed £300,000 as reasonable financial provision, but found herself with nothing, when she failed to convince the judge, who dismissed the case saying her lack of income was a ‘lifestyle’ choice and questioned the extent of the contact and the warmth of the relationship she had with her late father.

Disputes that arise following the death of a family member often excite strong emotions and a sense of injustice, but it’s important to get advice before you start, as you may be in for the long haul. Each case tends to turn on its own very particular circumstances, and it’s important that you have a credible, reliable claim and that it is clearly made from the outset.

There are also time conditions to be met.  Any claim for financial provision under the 1975 Act must be made within six months from the date that probate is granted, which is generally some three to six months from the date of death. There are certain circumstances when a court would allow a claim out of time but these are rare.  Also, for a cohabitee to claim, they must be able to prove they lived as husband and wife for at least two years before their partner died so documentary evidence and paperwork supporting the position could be vital