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What can a disappointed beneficiary do to challenge how an estate is to be divided?

Inheritance is becoming increasingly important in maintaining living standards because earnings have been stagnant for more than a decade is the conclusion of a report by the Institute of Fiscal Studies. Inheritance is very important in helping many people pay off debts, buy a home and/or plan for their retirement.

Accordingly, it can be upsetting and come as a shock if an inheritance that had been expected does not materialise. There may not be anything that can be done if this happens because we are all free to leave our wealth to whomever we choose. However, one possibility that is open to certain people who are disappointed by the level of provision made for them is to bring a claim against the estate of the deceased for reasonable financial provision to be made for them. Such a claim is made under the Inheritance (Provision for Family and Dependants) Act 1975 (IPFDA).

The Legal Position

The Act sets out the categories of Claimant which include:

• The spouse or civil partner of the deceased.
• A former spouse or former civil partner of the deceased, but not one who has formed a subsequent marriage or civil partnership.
• A child of the deceased.
• Any person (not being a child of the deceased) who in relation to any marriage or civil partnership to which the deceased was at any time a party, or otherwise in relation to any family in which the deceased at any time stood in the role of a parent, was treated by the deceased as a child of the family.
• 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.
• Any person who for the whole of the period of two years ending immediately before the date when the deceased died, was living:
  • in the same household as the deceased, and
  • as if that person and the deceased were a married couple or civil partners.

How does the Court decide cases?

The Court will be concerned with answering two questions:

1. Does the Will (of the intestacy rules if the deceased did not make a Will) make reasonable financial provision for the applicant?
2. If not, what provision should be made for the applicant?

A surviving spouse is entitled to a higher standard of provision, namely such provision as is reasonable in all the circumstances. For everyone else, the provision to be made is limited to that which is reasonably required to meet their maintenance needs. This latter category is the focus of the discussion below.

The Act lists the criteria the Court must consider when deciding these two questions. These are:

• The financial resources and needs that the Claimant has or is likely to have in the foreseeable future.
• Financial resources and needs of other applicants.
• Financial needs and resources of the beneficiaries of the Estate.
• Obligation of the Deceased towards the Claimant.
• The size and nature of the Estate.
• The Claimant's physical and mental disabilities or any beneficiary of the Estate.
• Any other matter which the Court might consider relevant, including the conduct of any party.

Maintenance need

The concept of maintenance was considered by the Supreme Court in Ilot v Mitson (No.2) [2017] UKSC 17; [2018] AC 545. The Court decided that:

• Maintenance connotes payments which enable an applicant to discharge the costs of their daily living at whatever standard is appropriate to them; the provision is to be made to meet recurring expenses, being expenses of living of an income nature.
• An award can be made by way of a lump sum, paying off debts or the purchase of a property to meet a housing need.
• The level of maintenance to be provided is flexible and falls to be decided on the facts of each case: it is not limited to subsistence level but is to be judged by the standard appropriate in the circumstances.
• The applicant must show "something more" to establish a claim beyond living in necessitous circumstances and having a qualifying relationship with the Deceased.
• Determining whether reasonable financial provision has been made for the applicant by the Will or the intestacy rules should be assessed as at the date of the hearing and not for example as at the date the Will was made. The circumstances of the applicant may have changed owing to chronic illness or incapacity.

What award can a Claimant ask the Court to make?

The court has a power to award a lump sum, periodical payments or even the transfer of property. Awards are often framed to secure an applicant's housing needs, to subsidise an income deficit, to discharge debt, provide a contingency fund or fund the costs of retirement.

What can Forbes Solicitors do for you?

If you are in one of the categories of Claimants listed above and have been excluded from a loved ones Will, then we may be able to help you seek an award for reasonable financial provision.

The Contentious Trusts and Probate Team at Forbes have a wealth of experience of dealing with these types of claims. This is all we do. We act for individuals across the country and are committed to practising those things that constitute good service from a client's perspective:

• We are accessible and responsive.
• We always push the case and tell the client.
• We stick to agreed deadlines and timings and do things within a reasonable timescale.

We offer a range of price and payment options so that you can choose the one which best suits you including working on a no win, no fee arrangement. We are more than happy to speak with you initially for free and without any obligation.

What our client's say about us:

"Look no further than Forbes Solicitors!

Lucy is a fantastic solicitor who really is a credit to her profession. Like many probate cases, the personal circumstances surrounding my situation were sensitive and emotionally challenging. During what can often be a complex and emotive time for clients, having the right solicitor makes a considerable difference. Lucy, although always highly professional, exudes a warm and amiable manner that consistently demonstrates understanding and compassion. On a practical level, Lucy is knowledgeable, experienced and efficient. Easy to reach, Lucy swiftly responds to any questions or queries and is always happy to further explain things if necessary. I cannot thank Lucy enough for her tenacity as a solicitor and her warmth as a person."

Our Fees - Conditional Fee Agreements

Subject to our initial assessment of your case, we may be willing to take your claim on under a Condition Free Agreement, more commonly known as 'No win, no fee' agreements.

For more information contact John Lambe in our Contesting a Will department via email or phone on 01772 220 235. Alternatively send any question through to Forbes Solicitors via our online Contact Form.

Learn more about our Contesting a Will department here

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