Do I have the right to contest a loved one's Will?

Posted by Cathryn Culverhouse on
Have you recently been left upset and disappointed by a loved one's Will following their death? Do you believe that you are entitled to receive a benefit under a Will but have not been sufficiently provided for? All is not lost…

Certain individuals may be able to make a claim under the Inheritance (Provision for Family and Dependants) Act 1975 ("Inheritance Act") if they feel that insufficient provision has been made for them in a loved one's Will. 

Inheritance Act claims must be made within 6 months of the date of the grant of probate and so I would advise you take legal advice as soon as possible.  It is worth mentioning that these types of claims can be particularly stressful and upsetting. They can lead to very fraught family relationships or a complete breakdown of those relationships at an already difficult time. However, some people are left feeling that they have no choice but to bring an Inheritance Act claim to acquire what they believe is theirs.

Who can apply?

  • Spouse or civil partner of the deceased
  • Former spouse or civil partner of the deceased that has not remarried before the deceased’s death - if the former spouse of civil partner subsequently remarries after the date of the deceased’s death the claim will be limited to the period between the deceased’s death and the date of the remarriage
  • Any person living with the deceased as husband, wife or civil partner for 2 years immediately before death
  • A child of the deceased
  • Any person (not being the 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 who immediately before the death of the deceased was being maintained, either wholly or partly, by the deceased

If you fit into one of the above categories then you have passed the first hurdle.

Factors the Court will consider

In determining whether there is a valid claim under the Inheritance Act the court will consider the following two factors:

  • Whether reasonable financial provision has been made for the applicant by the deceased under the Will (or through the intestacy rules)?
  • If reasonable provision has not been made, what, if any, provision should be made?

Reasonable financial provision

The way reasonable financial provision is determined depends on the class of individual applying. Any applicant other than a spouse or civil partner is limited to maintenance.

In determining what reasonable financial provision is, the court will have regard to the following relevant factors on a case by case basis:

  1. The financial resources and needs (now and in the future) of the applicant;
  2. The financial resources and needs (now and in the future) of any other applicants;
  3. The financial resources and needs (now and in the future) of the beneficiaries of the estate;
  4. The obligations and responsibilities of the deceased towards any applicant or beneficiary of the estate;
  5. The size and nature of the net estate of the deceased;
  6. The physical and mental disabilities of the applicant or any beneficiary of the estate; and
  7. Any other matter which the court might consider relevant, including the conduct of any party.

The Court will also consider the following factors for the following categories of applicant:

Spouse or civil partner – the age of the applicant, the duration of the marriage and the contribution made by the applicant to the welfare of the family. The court will also consider what the applicant may reasonably have expected to receive if the marriage or civil partnership had been terminated by divorce or dissolution rather than by death.

Cohabitant - the age of the applicant, the duration of cohabitation and the contribution made by the applicant to the welfare of the family.

Child or person treated as a child of the family – the manner in which the applicant may reasonably have been expected to be educated. Where the applicant had been assumed a child of the family, the courts will also consider whether the deceased had assumed maintenance of the applicant, the extent to which it was assumed and the length of time the deceased had been discharging that responsibility. The court will also consider whether the deceased was aware that the child was not his own.

Dependant - whether the deceased had assumed maintenance of the applicant, the extent to which it was assumed and the length of time the deceased had been discharging that responsibility.

A valid claim against the estate requires extensive disclosure of the applicant's, and the beneficiaries', financial and personal circumstances. If you wish to explore the possibility of making an Inheritance Act claim, please do not hesitate to contact us.

About the Author

Photograph of Cathryn Culverhouse

Cathryn is a solicitor currently seated in the Commercial Litigation team, based in Oxford.

Cathryn Culverhouse
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01865 258041

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