Aimee takes a look at the often overlooked Inheritance (Provision for Family and Dependants) Act 1975 which enables a person to make a claim where a will, or lack of a will, means that they are left without reasonable financial provision.
Many people choose to plan for the inevitable and make a will specifying how they would like their estate to be distributed when they sadly pass. For a number of reasons, some people may wish to exclude individuals or family members from benefiting from their estate.
Many people are unaware of the Inheritance (Provision for Family and Dependants) Act 1975. This act enables the court to vary the distribution of a deceased’s estate, contrary to their wishes (if a will was made) or the intestacy provisions (where there is no will), for certain family members and dependants who:
- have been left out of a will entirely;
- have been left out as a result of intestacy; or
- have been left less than they require.
You are eligible to make a claim under the Inheritance (Provision for Family and Dependants) Act 1975 if you were:
- a spouse/civil partner of the deceased;
- a former spouse/civil partner who has not remarried or entered into a further civil partnership;
- a person living with the deceased for at least two years prior to their death as the husband or wife of the deceased;
- the deceased’s child;
- a person who was treated as the deceased’s child in relation to a marriage to which the deceased was a party; or
- a person who was being “maintained” by the deceased immediately prior to their death.
A spouse or civil partner who claims under the Inheritance (Provision for Family and Dependants) Act 1975 is entitled to such financial provision as is reasonable in all the circumstances whether or not that provision is necessary for their maintenance. Anyone else who is able to claim is entitled to such reasonable financial provision as is necessary for their maintenance.
Prior to the Inheritance and Trustees’ Powers Act 2014 coming into force, the bill originally contained a proposal to extend the scope of the Inheritance (Provision for Family and Dependants) Act 1975. The proposed amendment would have allowed claims to be brought against the estates of persons who were domiciled outside of England and Wales. This amendment was subsequently removed due to the conclusion that it would have required English courts to make potentially unenforceable decisions affecting overseas assets, and the risk that it may undermine inheritance rights in other jurisdictions. That said, where a person dies domiciled in England and Wales, with assets located abroad, it is still possible to bring a claim as Roman discussed in his recent blog.
Despite the potential claims under the Inheritance (Provision for Family and Dependants) Act 1975, making a will is still important as Jemma Guy has highlighted in her blog. However, it is equally important to consider that, although you have the right to leave your estate to whoever you wish, certain people may have the legal right to contest your final wishes.
There is no guarantee that a claim brought will be successful, but the risk should be considered by those who make the decision to exclude individuals or family members from benefiting from their estate.
