Seeking Further Provision from an Estate – The Inheritance (Family Provision) Act Explained

While most people are aware that a Will may be challenged if the deceased was of unsound mind, drunk, or acting under duress, it is not commonly known that the majority of Wills litigation involves Wills which are entirely valid.

The Inheritance (Family Provision) Act allows disappointed beneficiaries to apply to the Court to receive an increased benefit from an estate despite the validity of the Will.

Who Can Claim?

There are seven classes of people who are entitled to bring a claim under the Inheritance (Family Provision) Act. They are:

  1. The spouse of the deceased;
  2. A divorced spouse of the deceased;
  3. A child of the deceased;
  4. A child of a spouse of the deceased who was maintained or entitled to be maintained by the deceased immediately prior to death;
  5. A grandchild of the deceased;
  6. A parent of the deceased who satisfies the court that he or she cared for, or contributed to the maintenance of the deceased during their lifetime; and
  7. A brother or sister of the deceased person who satisfies the court that he or she cared for, or contributed to the maintenance of, the deceased during their lifetime.

Of these seven categories, the vast majority of successful claims are brought by spouses, children and grandchildren of the deceased.

What Does the Court Consider?

Leaving aside all of the legal jargon, the primary question which the Court seeks to answer when considering a claim under the Inheritance (Family Provision) Act is whether the deceased made adequate provision for the proper maintenance and support of the claimant.

In very broad terms the Court looks at two primary issues. The first of these is the question of need.

The Court considers whether the claimant is sufficiently able to look after his or her own needs without receiving a further benefit from the estate. This question is not an absolute one and is looked at in the context of the value of the estate and the relative needs of the other beneficiaries or claimants. If the estate is particularly large, the Court may make provision for a claimant who is already able to afford the necessities of life. In such cases the Court may consider it appropriate that the claimant be able to afford some of the luxuries of life also.

The second issue which the Court looks at in considering a claim is the claimant’s moral claim. The Court considers whether or not in all of the circumstances the deceased had a moral duty to make greater provision for the claimant in their Will.

Factors to which the Court may have regard when considering an applicant’s moral claim include whether the claimant contributed to the building up of the deceased’s estate and the quality and duration of the relationship between the claimant and the deceased.

Time Limits

Claims under the Inheritance (Family Provision) Act must be filed and served within 6 months of the grant of probate of an estate. As a grant will often issue within 3 or 4 months of the deceased’s passing (and sometimes sooner), it is important that anyone considering bring a claim seek legal advice promptly.

Please note that this article is for information purposes only. It is not intended to constitute legal advice. Readers should seek legal advice before acting in reliance upon any of the information contained herein.