When people make their Will, they more often than not make specific provision for people who are dependant on them financially to ensure they will be taken care of after their death. Occasionally, though, omissions are made in Wills – so if you are a dependant of the deceased but no provision has been made for you, you may have grounds for making an inheritance claim against the estate.
There is a provision under the Inheritance Act 1975 that permits any financial dependants omitted from the Will to claim against the estate of the deceased.
These kind of claims, however, can only be made if the deceased passed on whilst living in England or Wales.
Need specialist advice on an inheritance claim? We can help
Our litigation lawyers regularly handle a wide range of contested wills and probate claims both locally from our 4 offices in in Salisbury, Andover, Fordingbridge and Amesbury and throughout Wiltshire, Hampshire, Dorset and further afield.
Thinking of making an inheritance claim? Call our expert team on FREEPHONE 0800 1404544 for FREE initial phone advice – with no strings attached.
Sadly inheritance claims are becoming much more common
Recent figures of the number of claims brought in the High Court in 2016 under the Inheritance (Provision for Family and Dependants) Act 1975 show a full 36 per cent increase on 2015. And there is an even bigger jump of over 1000% in the number of claims made annually compared with 10 years earlier in 2005.
One of the main reasons for the recent increase in the number of claims is the growing complexity of British families – with a significant upswing in divorce, remarriage, and living together outside marriage – especially when no allowance was made in the will for second families or additional children.
Additionally, the massive hike in home ownership and British property prices over the last 30 years has meant that a much larger number of people now have substantial and valuable assets.
Who is entitled to make an inheritance claim?
The Act confirms that the people who can make an inheritance claim in respect of financial dependency on the estate of the deceased:
- Their surviving spouse or civil Partner, provided they have not remarried or entered into another civil partnership. This most commonly happens when the spouse was financially dependant on the deceased but there is nothing in the will to take account of that. The spouse can then make an inheritance claim in order to receive a share of the estate
- A person who lived with them for at least two years as a co-habitee. The law was amended in 1995 to take account of the fact that more people live together without being married. Now, if a couple has lived together for at least 2 years, then the surviving partner is eligible to contest the will of their deceased partner if they feel adequate provision has not been made for them.
- Children. Whether the children of the deceased are natural or adopted, they too have the right to contest the will. This generally happens if they were financially dependant on their deceased parent, but it can also happen if they feel they were unfairly left out or neglected in favour of their siblings. The law also makes provision for any step-children of the deceased, or any others that they may have looked after as if they were their own children.
- Anyone else financially dependant on the deceased may also be able to make an inheritance claim if they have been overlooked. This could be an elderly relative or disabled person who was reliant on the deceased, or anyone who received regular maintenance from them.
Dependency claims are also possible under what are known as the “intestacy rules” if the deceased had assets but didn’t leave a valid will.
Can a Former Spouse Make a Claim?
If the deceased had a former spouse who remained unmarried following their split, then they may also be entitled to contest a will if they feel they have been unfairly left out. If successful, their payment will generally be in the form of maintenance payments in case they choose to marry again, at which point their entitlement to the estate will cease.
What are the most common causes of inheritance claims?
Every wills and contested probate dispute tends to be different – but amongst the most common reasons for these kind of claims are the following;
- lack of financial provision for a dependent of the deceased – including potential heirs being disinherited when the deceased’s remarriage automatically invalidated their previous will
- mistakes in wills
- claims by a surviving cohabitee when the deceased failed to leave a will
- legacies in the will not reflecting what had been promised verbally by the testator before their death
- family members not receiving the kind of inheritance they expected
Proving Your Inheritance Claim at Court
Anyone who makes a claim on the estate must have proof of their inheritance claim. If a case goes to court and the estate is worth less than £30,000, then it will be heard by the county court. If the estate is worth over £30,000, then it will be heard in either the Family Division or Chancery Division of the High Court. If successful, then the money will generally be paid in the form of a maintenance allowance rather than a lump sum as with most other inheritances.
Inheritance Act Claims – What will the Court look at?
When disputing a Will as a financial dependant, the court considers several factors when making their decision about the eligibility of your inheritance claim:
- The size of the estate
- The needs and resources of the claimant
- The needs and resources of the other beneficiaries
- The responsibilities that the deceased person had to the claimant
- Any disabilities experienced by the claimants
- The financial status of any fellow claimants
This allows the Court to make a fairly judged decision as to whether the provisions made in the Will are reasonable. Where the principle of the inheritance claim is successful, it is up to the dependant to persuade the court how much should be awarded from the estate of the deceased.
It is important that you act quickly if you do intend to a claim as there is a strict time limit in which to make such claims.
Strict Time Limit for your Inheritance Claim
These types of claims must be made within 6 months from the date of the grant of probate (Grant of probate is the document issued by the Probate Service which acts as legal authorisation for the executor to deal with the deceased’s assets).
The Court does have power to permit claims after this time limit has expired, but this would only be in exceptional circumstances. If you are thinking of making inheritance claim, our strong advice is to make sure you get specialist legal advice as soon as possible. Don’t delay – the alternative is losing out on your right to make an inheritance claim entirely.
The need for specialist legal advice
Finally, don’t forget this is a complex area of law. If you are the dependent of someone who has recently died, were not left anything in the will, and are now thinking of making a claim, make sure you appoint a solicitor with plenty of experience of these kind of contested probate claims.
How can I fund my inheritance claim?
Our specialists can discuss the options with you – and that may well include no win no fee representation, for appropriate dependency claims.
Making your inheritance claim – A Warning
The sad fact is that for many people who make an inheritance claim, or indeed any other sort of contested probate application, the result, regardless of whether any financial award is made, is often to set friends and family members against each other.
In our experience this tragically often causes real rift and disputes between families – and sometimes those previously close family members never speak again. So if you are thinking of making a claim, do consider the consequences and impact on other family members first.
No one really wants to become involved in contesting probate and end up falling out with their friends or relatives, but having a solicitor or mediation service to help you deal with any contentious issues can be massively beneficial to all involved.
Nationwide coverage – and acting for expats
Provided the deceased was living permanently in England all Wales at the time of his or her death, we can represent you, either in face-to-face interviews or using a combination of phone, email and Skype or Facebook video calls.
You don’t even need to be based in the UK. We regularly complete cases for expats and those working abroad.
What is a probate caveat?
A probate caveat can be used to prevent someone taking a Grant of Administration over an estate.
Lack of capacity of the testator (the person whose Will is in question) during the time the Will was created, or a belief that the Will in question is not the latest copy written by the deceased, can cause concerns over validity.
In addition the person taking out the Grant may well be of concern themselves – if, for example, they are a significantly younger foreign national, who married very close to the time of his or her demise, the relatives may feel it likely that the estate will be cashed in and taken abroad.
How does a probate caveat work?
When there are concerns over the validity of a Will or the identity of the person who is proposing to take the Grant over an estate, a caveat can be entered at the Probate Registry to effectively freeze distribution of an estate.
To enter a caveat is relatively inexpensive and a comparatively simple way to stop the Grant being issued – although it may be necessary to ensure this is done quickly as the person seeking the Grant may attempt to ‘warn off’ your caveat on the basis that there are no grounds for concern.
After the grant of a probate caveat, the validity of any will is going to be ultimately determined by the Court.
Domicile and Your Inheritance Claim
The rules governing domicile with regards to inheritance claims are complex and a number of factors have to be taken into consideration. If you’re thinking of making a probate claim, seek advice from our team of specialist contested probate solicitors so that we can help eliminate reasons for doubt about domicile issues at an early stage.
However in general terms, to bring an inheritance claim, you need to show that the deceased was domiciled in England and Wales. “Domicile” broadly means the country that someone considers their permanent home, or lives in.
However difficulties can arise where a person has actually moved in or out of a particular country while they were alive, or shown their intention to do so.
The guidelines for considering domicile in inheritance disputes are as follows:
• Everybody has a ‘domicile of origin’, i.e. the place where they were born
• You can acquire a ‘domicile of choice’ through a combination of actually living in a particular country and being able to prove and intention to permanently live there
• Only one domicile is possible, i.e. joint domicile as with joint nationality does not exist
• Nobody can be without a domicile
• An existing domicile continues until it is proved that a new domicile has been acquired
• A person can agive up a domicile by either ceasing to live there, ceasing to intend to permanently live there or indefinitely live there
• If a new domicile of choice is not acquired, the person’s domicile reverts to their domicile of origin
When considering whether a person has acquired a domicile of choice, the Court must look at any circumstance that provides evidence of a person’s residence, or their intention to permanently reside in a country. When considering if someone intends to permanently reside, the Court can look at the motive for moving to a particular country, the fact that residence was not freely chosen and the fact that residence was precarious.
The best way to avoid inheritance claims on your estate?
That’s simple – making sure you have a valid and up-to-date will at all times. In particular wills are often not updated after major life events – but failing to do so can prove very expensive.
Even the government’s own gov.uk website recommends regular will reviews. In particular here is a direct quote taken from that site;
“You should review your Will every 5 years and after any major change in your life”.
Click here to read more about making a will.
Can a “Mistress” Make an Inheritance Claim?
The lot of a mistress/lover or the male equivalent can be a very lonely one and when it comes to making inheritance claims, both mistresses and lovers are often left out in the cold. Now at least they are usually allowed to grieve openly or to take centre stage at the funeral, even if they are not allowed to have help in the sense of a pension etc, and what’s more, in some circumstances, they can make an inheritance claim to support them after their loved one dies.
The Inheritance Act is very clear that a mistress or a lover can only make an inheritance claim if they were maintained by the person who has died.
However even if they were being maintained by the deceased, that does not mean necessarily that the maintenance was full time – they might have been ‘partially maintained’ and this is why inheritance claims can often be so difficult, as this kind of maintenance is not a black-and-white issue.
“Partially maintained” might relate to a regular gift of goods or monies to ensure their ongoing welfare. If the deceased person simply gave small gifts every so often, then this is not likely to be viewed as qualifying for inheritance claims.
Instead, any lover or mistress will probably need to show that the deceased gave them monies and gifts of sufficient worth that they were used to maintain that person’s lifestyle – and without these gifts and monies, significant levels of hardship would be experienced or their standard of living would be substantially altered.