Inheritance Act Claims

The Inheritance (Provision for Family and Dependants) Act 1975

A claim under this Act is made when a person is attempting to become a beneficiary of a Will or Intestacy when the Will or Intestacy would otherwise not sufficiently provide for them. What this Act allows is for the Court to redistribute the Deceased's Estate differently to that provided for by the Will or Intestacy.

However, the Court is only allowed to alter the Will or Intestacy in certain defined circumstances. Those circumstances are set out by section 1 of the Act which states:

Where after the commencement of this Act a person dies domiciled in England and Wales and is survived by any of the following persons –

  • the spouse or civil partner of the deceased
  • former spouse or former civil partner of the deceased, but not one who has formed a subsequent marriage or civil partnership
  • any person (not being a person included in paragraph (a) or (b) above) to whom subsection (1A) or (1B) below applies
  • child of the deceased
  • any person (not being a child of the deceased) who, in the case of any marriage or civil partnership to which the deceased was at any time a party, was treated by the deceased as a child of the family in relation to that marriage or civil partnership
  • any person (not being a person included in the foregoing paragraphs of this subsection) who immediately before the death of the deceased was being maintained, either wholly or partly, by the deceased

that person may apply to the court for an order under section 2 of this Act on the ground that the disposition of the deceased’s estate effected by his will or the law relating to intestacy, or the combination of his will and that law, is not such as to make reasonable financial provision for the applicant.

(1A) This subsection applies to a person if the deceased died on or after 1st January 1996 and, during the whole of the period of two years ending immediately before the date when the deceased died, the person was living –

  • in the same household as the deceased, and
  • as the husband or wife of the deceased

(1B)This subsection applies to a person if for the whole of the period of two years ending immediately before the date when the deceased died the person was living –

  • in the same household as the deceased, and
  • as the civil partner of the deceased.

The first point that is often overlooked in this Act is that the Court is only allowed to interfere with the Will or Intestacy of the Deceased if the Deceased died domiciled in England or Wales. It is often assumed that domiciled is simply another way of saying lived in. It is not. The law of domicile becomes particularly relevant when the Deceased was born domiciled in a different country to England or Wales.

For instance, if a person was born in India then their domicile of origin would be Indian. If that person then moves to England and stays in England for many decades then that does not necessarily mean that the person acquires English domicile. The test for domicile is whether a person has a settled intention to remain permanently in England. If the person does not have a settled intention to remain permanently in England then their domicile would remain their domicile of origin which is in this case Indian.

If that is the case then the Court would simply have no jurisdiction under this Act to alter a Will or Intestacy.

There have been many decided cases recently that have reaffirmed the position that it is surprisingly difficult to lose one's domicile of origin. Court of Appeal cases include Barlow Clowes International v Peter Henwood 2008 EWCA Civ 577. Lovell Chohan Solicitors have been involved in cases under the Inheritance Act where proof of domicile has been essential to deciding the case either in favour of the applicant, or defending the claim on the behalf of the Estate.

If the hurdle of domicile is overcome and the Court is allowed to hear the claim, then it can be seen from the above section of the Act that not everybody is allowed to apply under the Act. The people who are allowed to apply are as set out in the Act above and they are essentially the close family of the Deceased or any person that was being maintained by the Deceased prior to their death.

Applicants must also be aware that it is essential to act quickly in a claim under the Act as any claim must be made within six months of the grant of probate (if there is a Will) or the granting of Letters of Administration (if there is an Intestacy). This time limit can be extended but it can be difficult to do so.

Once the claim has been correctly brought by an eligible person within time then the question the Court has to decide is whether reasonable financial provision has been made for the applicant by the Will or Intestacy. The power of the Court as to what is meant by reasonable financial provision is fairly wide and the Court has to carry out a balancing exercise between the needs of the applicant and the needs of any other potential beneficiaries under the Will or Intestacy. Therefore, by section 3 of the Act the Court must consider the resources and needs of all the potential beneficiaries as well as the size of the Estate which is available to try to meet their needs. However the Court is also allowed to consider any other matter that it considers relevant.

As with all Civil Litigation the costs of the litigation must be considered carefully before an application is made under the Act. The Courts particularly discourage applications under the Act where the size of the Estate is small. This is because the cost of the Court proceedings could take up a large proportion of the Estate.  Careful consideration therefore needs to be given to attempting to settle any dispute over the Estate prior to litigation.  Lovell Chohan Solicitors have been involved in cases where it has been possible to agree a compromise to disputes about Estates without the need to incur the costs of a full trial.meant by reasonable financial provision is fairly wide and the Court has to carry out a balancing exercise between the needs of the applicant and the needs of any other potential beneficiaries under the Will or Intestacy. Therefore, by section 3 of the Act the Court must consider the resources and needs of all the potential beneficiaries as well as the size of the Estate which is available to try to meet their needs. However the Court is also allowed to consider any other matter that it considers relevant.

As with all Civil Litigation the costs of the litigation must be considered carefully before an application is made under the Act. The Courts particularly discourage applications under the Act where the size of the Estate is small. This is because the cost of the Court proceedings could take up a large proportion of the Estate.  Careful consideration therefore needs to be given to attempting to settle any dispute over the Estate prior to litigation.  Lovell Chohan Solicitors have been involved in cases where it has been possible to agree a compromise to disputes about Estates without the need to incur the costs of a full trial, but where necessary we are able to issue proceedings and follow each step through to final Judgement and enforcement.