What is the Inheritance (Provision for Family and Dependants) Act 1975?
When it comes to estate planning and making a Will, you must carefully consider the potential implications of excluding certain family members.
The Inheritance (Provision for Family and Dependants) Act 1975 (the Act) grants the court the power to make provision for family members and dependants who have not been left reasonable financial provision.
There is a limited group of people who can make a claim against your estate under S1(1) of the Act, this includes:
- Spouse or civil partner of the deceased.
- Former spouse of civil partner of the deceased who has not remarried or entered into a civil partnership.
- A person who for 2 years prior to the deceased’s death was living with the deceased as if they were a spouse or civil partner.
- A child of the deceased.
- A person who was treated by the deceased as a child of the family.
- Any person (not listed above) who was being maintained, wholly or partly, by the deceased immediately before their death.
The starting point is that everyone has ‘testamentary freedom’ to leave their estate to whomever they wish. The burden of proving that reasonable financial provision was not made for the Applicant in the Will or under the rules of intestacy lies with the Applicant.
What is reasonable financial provision?
The Act defines reasonable financial provision as ‘such financial provision as it would be reasonable in all the circumstances of the case for the Applicant to receive for his maintenance.’ When considering whether reasonable financial provision has been made for the Applicant, the court will look at each case on an individual basis, having consideration to the facts and circumstances of the specific case.
Factors considered by the court:
When a person makes a claim the court will consider a number of factors when deciding whether to make an order. These factors are set out in s3 of the Act as follows:
- The financial needs and resources of the Applicant now and in the future.
- The financial needs and resources of any beneficiaries now and in the future.
- Any obligations and responsibilities the deceased had towards any Applicant or beneficiaries of the estate of the deceased.
- Any other relevant factors, including the conduct.
If the court finds that reasonable provision has not been made, it has the authority to adjust the distribution of the estate to ensure fairness.
Powers of the Court:
If the Applicant successfully challenges the exclusion under the Act, the court may order provision to be made for them from the estate. It is essential to recognise that the court's decision will prioritise fairness and the financial needs of the excluded person which may impact the intended distribution of the estate. Under S2 of the Act the court can make an order including but not limited to:
- A lump sum payment to be made to the Applicant.
- Periodical payments to be made to the Applicant for a specified period of time.
- An order for transfer of a property forming part of the deceased’s estate.
The Applicant must keep in mind that the court will make an order based on what is required for maintenance after taking into consideration the factors set out above. The court will not make an order simply because the Applicant is displeased with their share of the inheritance or that they were excluded from the Will.
What can we do to help?
If you think that you have a claim against a person’s estate it is critical that you act fast. A claim must be brought within 6 months of the date of the Grant of Probate or Letters of Administration (when the deceased died without a Will) being issued. If you wish to discuss a potential claim please contact us to make an appointment with one of our Contentious Probate Solicitors.
If you are looking to make a Will and have concerns about the impact of the Inheritance (Provision for Family and Dependants) Act 1975 please contact us to make an appointment with one of our Private Client Solicitors.