What can you do if you think you have been short-changed in someone's Will?
English law has always recognised the principle of 'freedom of testamentary expression', which means that a person can leave their property to whoever they wish when they die.
However, even if a will has been properly executed and is perfectly valid, a Court can override what it says in certain situations. The Inheritance (Provision for Family and Dependants) Act 1975 allows close family, dependants and live-in partners to apply to the Court for an order that the deceased's estate should make 'reasonable financial provision' for them.
People who are eligible to claim under the Act include:
• a spouse or civil partner
• a former spouse or civil partner who has not married again or formed another civil
partnership
• a partner who had lived with the deceased for a period of two years before the death
• a child of the deceased
• a person treated as a child of the marriage or civil partnership, for example a step-child
• a person who was wholly or partly maintained by the deceased immediately before the death.
When assessing a claim by a spouse or civil partner - or in some cases a former spouse or civil partner - the Court considers what financial provision it would be reasonable for them to receive in the circumstances, whether or not they actually need it for their maintenance.
In all other cases the Court considers what provision would be reasonable for them to receive for their maintenance - and so if they do not need maintenance, the Court will not make any provision for them.
In assessing a claim, the Court takes into account a number of general factors:
• the financial resources and needs that all claimants and beneficiaries of the will have or are likely to have in the foreseeable future
• any obligations and responsibilities that the deceased had to any claimant or beneficiary
• the size and nature of the deceased's estate
• any physical or mental disability of any claimant or beneficiary
• any other matter - including the conduct of the claimant or anyone else - that the Court considers relevant.
The Court also looks at factors relating to particular types of claimant. For example, in relation to spouses, civil partners, live-in partners, and former spouses and civil partners, the Court takes into account the age of the claimant and duration of the marriage, civil partnership or period of living together, as well as the contribution made by the claimant to the welfare of the deceased's family.
If the Court is satisfied that reasonable financial provision has not been made for the claimant, it has the power to make various orders, including the transfer of property to the claimant, the payment of a lump sum of money out of the estate, and the making of periodical payments by the estate for a certain period of time.
The Court can also, if the claimant urgently needs financial assistance, order interim payments pending the outcome of the Court proceedings.
The claim must be made to the Court within six months of the deceased's executors obtaining the Grant of Probate. The Court can waive this deadline in exceptional circumstances, but it is probably not a good idea to rely on this.
For further information please contact Claire Haverfield at Moore Blatch Solicitors on 023 8071 8000, email claire.haverfield@mooreblatch.com.