Inheritance Act Claims – All Change!
The Inheritance and Trustees’ Powers Act 2010 has updated the 1975 act for deaths after 1st October 2015. The intention is to make claims a little more straightforward, in particular for non biological children. These of course are an increasingly common in today’s society, and it is often the case that the step parent really is a full parent in every real sense of the word.
The 2010 Inheritance Act opens up the door for claims those who were parented by their grandparents, aunts and uncles or indeed anyone who has brought up the individual . The same applies to an unmarried homosexual or heterosexual couple, as well as folk brought up by a single, non-biological parent. In effect, if these issues might affect you, your legal planning needs to be revisited and thought through in a much more comprehensive manner to avoid leaving a legacy of Court disputes and making lawyers too much money!
The Inheritance Act (as it is often known) is designed to allow people who should have been provided for by a person who has died but have not been, or perhaps have not been adequately looked after. We don’t directly offer advice on such claims, but we have an arrangement with a good and relatively inexpensive firm of experts who do. Use the enquiry form at the foot of the Contest a Will page and give basic details if you feel advice would be worthwhile after you have read this page.
Often this is as a result of the person not having made a Last Will at all, or not having updated their Last Will to take into account of additional responsibilities.
Changes to the Provision for Family and Dependents Act from October 2014.
A person may qualify as being maintained by the deceased (and so able to make a family provision claim) if the deceased made a substantial contribution to that person’s reasonable needs other than for full, valuable consideration under an arrangement of a commercial nature (section 1(3), IPFDA 1975 as amended by paragraph 3, Schedule 2, ITPA 2014).
This means that a person claiming as a dependant under the IPFDA 1975 need no longer show that the deceased contributed more to the relationship than the applicant did. This removes the balance sheet test that can currently block claims in cases of mutual dependency.
The court must regard the matters set out in section 3 of the IPFDA 1975 (as amended by paragraph 5 of Schedule 2 to the ITPA 2014) when exercising its powers under the IPFDA 1975. A person who was maintained by the deceased immediately before the death will be eligible to claim under the IPFDA 1975 whether or not, beyond the fact of providing maintenance, the deceased had formally assumed responsibility for that person’s maintenance.
Who Can Apply Under the Inheritance (Provision for Family and Dependents) Act 1975?
The first point to note is that a claim can only be made of the deceased was domiciled in England or Wales (that essentially means that England or Wales was their permanent home.)
The second is crucial:
There is a strict time limit in claims under the Inheritance Act:
generally speaking, it is 6 months from the date that probate is granted (bear in mind that probate is not always required) unless you can convince a judge that there is a sound reason for that delay so that it was pretty much unavoidable.
If these tests are passed, then it is possible to make a claim under the Inheritance Act if you are:
- The deceased’s wife or husband or civil partner or a former wife / husband / civil partner who has not remarried;
- If you were living as husband or wife for at least two years and were doing so when the person died.
- a child of the deceased;
- any person treated during a marriage by the deceased as a child of theirs;
- anyone who, immediately before the deceased’s death was being looked after financially (even partly) by the deceased.
What is “reasonable provision” under the Inheritance Act?
A very good question and one which can be settled in two ways – by negotiation or by a judge if the case has to go to Court.
If it goes to Court, the Judge will review the circumstances and make an award which the judge considers fair and reasonable in all the circumstances. The judge may decide that no award is needed, and even award costs against an applicant or defendant the judge considers has been unreasonable. So a failed case can be extremely expensive.
If you feel that you may have a case, and the estate is large enough to consider legal action, we will review your case for an initial fee and advise you if there is a good prospect of success. It would be worth emailing us an outline of the potential Inheritance Act claim initially.
Some more interesting reading on Inheritance Act Claims.
Our general page on Probate Disputes is here.