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Inheritance disputes.May 1, 2012
Inheritance (Provision for Family and Dependants) Act 1975
The death of a partner, parent or other loved one is a very difficult and distressing time. This stress can be made worse when the will is challenged and inheritance claims are made for a share or increased share of the estate.
The object of an Inheritance Act Claim is to redistribute the estate to make reasonable financial provision for those related to the deceased and their dependents. An Inheritance dispute claim under the Act is made by that person to become a beneficiary or greater beneficiary of the deceased’s estate.
The act allows specified family members and persons in other categories to make an application to the court for a share or a greater share of the estate.
So who is able in an Inheritance dispute to apply under the act?
- The wife or husband of the deceased;
- A former wife or former husband of the deceased who has not remarried;
- A child of the deceased;
- Any person (not being a child of the deceased) who, in the case of any marriage 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;
- Any person not detailed above who immediately before the death of the deceased was being maintained, either wholly or partly, by the deceased;
- The deceased must have died living in England and Wales and the application must be made within six months after the grant of probate or letters of administration.
Inheritance disputes; the two stage test.
- The first question is whether the will made reasonable financial provision for the claimant.
- The second question, which arises only if the first is answered in the negative, is whether and to what extent the court should exercise its own wide powers in that respect.
A surviving spouse (or civil partner) is entitled to such provision as is reasonable in all the circumstances, whether or not such provision is required for his or her maintenance. Any other applicant is only entitled to such provision as is necessary for his or her maintenance.
The act requires the court, in conducting both stages of its analysis, to have regard to the following seven matters:
- The financial resources and financial needs which the person applying has or is likely to have in the foreseeable future;
- The financial resources and financial needs which any other applicant for an order under the Act has or is likely to have in the foreseeable future;
- The financial resources and financial needs which any beneficiary of the estate of the deceased has or is likely to have in the foreseeable future;
- Any obligation and responsibilities which the deceased had towards any applicant for an order or towards any beneficiary of the estate of the deceased;
- The size and nature of the net estate of the deceased;
- Any physical or mental disability of any applicant for an order or any beneficiary of the estate of the deceased;
- Any other matter, including the conduct of the applicant or any other person, which the court may consider relevant.
The act specifically states when considering inheritance claims by surviving spouses the court shall have regard to that which the person might have expected to receive if the marriage had ended by divorce rather than death.
Adult children of the deceased who have been and are capable of maintaining themselves will, unless they can establish that there is a very good reason why they should be provided for by someone other than themselves, have difficulty succeeding with an Inheritance claim.
For advice on Inheritance disputes call Carruthers Law today or fill in one of our enquiry forms.