04 June 2015
Claiming Against an Estate
Following a death, relatives and dependants can challenge someone’s Will by going to court and claiming financial provision from the estate if they are unhappy with what has or has not been left to them.
In England and Wales there are no legal requirements for anyone to leave a certain percentage of their estate to any dependants. It is entirely up to you when you write your Will what you leave in it and to whom. But if someone close to you dies that you are financially dependent on and they don’t leave you anything, or not enough for you to survive on, then they can claim against the estate.
If a Will has not been made then the same rules can be used to claim dependency against an intestacy.
The Inheritance (Provision for Family and Dependants) Act 1975 is not intended to be used for disappointed beneficiaries but the Courts would recognise the concept of moral obligation, particularly in the cases of hardship, should a claim be raised.
Who can make a claim against an estate?
The following people may be able to claim:
• The deceased’s spouse of civil partner
• A former spouse or civil partner – as long as they have not remarried
• Cohabitants – someone who lived as husband or wife without being married for at least 2 years
• Children – including adults, illegitimate or adopted children, including those born after the parent’s death.
• Someone treated as a child of the family – this would include a child of a partner who was dependent on the deceased
• Any other person who was financially dependent on, or had their needs looked after by the deceased.
Anyone who wishes to claim must show that the contribution to their maintenance was substantial and that there was a significant dependence on the deceased.
Spouses or civil partners do not need to be in financial need or financially dependent on the deceased to make a claim. The court will consider:
• Their age
• If they are responsible for children
• Their contribution to the family
• Length of relationship and any subsequent separation
• What they would have received if they had divorced
Former spouses and civil partners would have their age, children and contribution to the family taken into account. The terms of the split would be taken into account, for example how long ago they split up and any financial arrangements in place.
Challenging and making a claim on a Will can be a lengthy and complicated procedure so it’s always best to get professional advice from a lawyer prior to embarking on the process. A claim needs to be made within six months after probate, although the court can extend this period in certain circumstances.
If you are planning to make a claim on an estate get in touch with our Wills and Probate specialist lawyers at Slater and Gordon. Call us on freephone 0800 916 9055 or contact us online and we will call you.