The Inheritance (Provision for Family and Dependants) Act 1975 (the 1975 Act) allows specified classes of people to make claims against a deceased's estate if they consider that the will of the deceased or the applicable intestacy rules do not provide for them sufficiently.
When we are approached by potential 1975 Act claimants, the first questions we ask ourselves are, as follows:
- Was the deceased domiciled in England and Wales at the time of his or her death (a pre-condition for a 1975 Act claim)?
- How much time has expired since probate was granted for the deceased's estate (in general, 1975 Act claims must be made within 6 months of a grant of probate)?
- Is the potential claimant eligible to make a claim under the 1975 Act? and
- What award could the court make from the estate?
This article focuses on the last two questions – eligibility and award.
Several classes of people can potentially make a 1975 Act claim. These include the spouse or civil partner of the deceased, or their child. However, the law also permits claims to be made by a former spouse or civil partner (provided they have not remarried or entered into another civil partnership), a person treated as a child of the deceased, a person living as the husband or wife of the deceased and a person who was maintained by the deceased, whether fully or in part.
Eligibility to claim as a spouse, civil partner or a child of the deceased is generally fairly straightforward to demonstrate. However, the other categories provide for a wider interpretation of the class of claimants, so their eligibility must be considered more carefully. The 1975 Act also prescribes that those claiming as someone who lived with the deceased as a spouse or civil partner must have done so for 2 years prior to their death. Anyone claiming to have been maintained by the deceased must have been maintained immediately before death. So, whether a claimant is eligible will depend on the specific factual circumstances, taking into account guidance from case law.
It is often most difficult to prove that someone was treated as a child by the deceased or maintained by them, where one of these is the intended ground for a claim. This is because we often find that, in such circumstances, the deceased may have been doing so informally and in circumstances where there is no paper trail to prove the level and frequency of their maintenance payments. If witness evidence from other people is available, this may assist, provided that such witnesses are also aware of the arrangement and can vouch for the support or maintenance being provided by the deceased.
Type of award
Once eligibility has been determined, the next question is what type of award the court will make. For spouses and civil partners, the court can make an award of any sum it thinks is "reasonable in all the circumstances of the case for a husband or wife to receive, whether or not that provision is required for his or her maintenance". However, for the other classes of claimants, any award will be limited to reasonable maintenance.
In deciding what is reasonable provision, including maintenance, the court will consider factors set out in section 3 of the 1975 Act, including but not limited to: the size and nature of the estate, the needs of the claimant, the needs of other beneficiaries and whether the deceased had any obligation towards the claimant.
What is considered reasonable provision or maintenance in an individual case varies greatly, depending on the basis of the claimant's eligibility to claim and their individual circumstances. For example, someone who was living as a spouse or civil partner of the deceased, and who relied on him or her for their home and financial support may be awarded a lump sum to buy a property or be given ownership of the deceased's property. On the other hand, an adult child who has their own home and stable income may be awarded only a small lump sum, if anything.
In appropriate circumstances, the option to make a 1975 Act claim ensures that family members and others who were dependent on the deceased during their lifetime, but do not benefit sufficiently under their will or the relevant intestacy rules, are not left without vital financial support afterwards.
However, potential claimants must understand that the availability of such a claim is not intended to provide a method for anyone who feels that they have been short-changed by the deceased to right that perceived wrong. An individual's right to dispose of their estate in the way they choose - testamentary freedom - is still an important pillar of the law in England and Wales, and the courts will interfere with this only where they are satisfied that it is the right course of action and reasonable financial provision should be made for the claimant.