Inheritance Act claims – expert legal advice

Lodders’ expert inheritance disputes solicitors explain how to make a claim under the Inheritance Act, and other options for contesting a will.

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What is an Inheritance Act claim?

If you have concerns over your entitlement to someone’s estate because they did not leave a will and the Intestacy Rules mean that you will either (a) not be entitled to a share of their estate or (b) not enough provision will be made for you, you may have the right to bring a claim under the Inheritance (Provision for Family and Dependants) Act 1975 (“the Act”).

Equally, if a will was prepared but you have not been mentioned in it or insufficient provision has been made for you, the Act might still be of assistance. The Act allows specific categories of people to pursue a claim and sets out the factors which the court will consider in deciding whether that claim will be successful.

Who can make an Inheritance Act claim?

• A spouse or partner of the deceased
• An adult child of the deceased
• A child of the family
• A co-habitee of 2 years or more
• A former spouse or civil partner
• Someone who was maintained by the deceased for at least 2 years immediately before their death

How to bring a claim under the Inheritance Act 1975

The court will consider many factors when reaching its decision, such as your financial needs and resources as well as those of any other beneficiary or person entitled to bring a claim under the Act. The court will also consider the size of the estate and the circumstances of the whole case when reaching its decision about whether an award should be made.

This is a complex and developing area of law and your relationship with the deceased and the circumstances of your case will affect the outcome you might expect to secure.

It is also important to note that a claim must be made within 6 months of a Grant of Probate being issued.

If you are outside of this time limit, an application for permission to issue your claim late will first need to be made. You would need a good reason as to why you did not bring your claim within the time limit before a Judge will consider granting your application. Your claim will only be heard if your application is successful.

In recent years the courts have taken a much more lenient approach to granting applications. Therefore, whilst the need to bring such an application is not fatal to a potential claim, it does create an extra hurdle to having your case heard. It is therefore important to act quickly.

Lodders can help assess the strengths of your case and provide guidance on whether a claim might be worth pursuing.

How to challenge the validity of a will

In circumstances where the Act may not be of assistance, it may still be possible to challenge a will if you have any of the following concerns about the testator (the testator is the person whose will is being challenged):

• The testator lacked capacity to make the will
• The testator was unduly influenced by another beneficiary
• The testator had no knowledge of, nor did they approve the contents of the will
• A beneficiary made untrue comments to the testator about another beneficiary which resulted in the testator reducing or excluding the inheritance which they would otherwise have left to that beneficiary, in favour of the person who made the comments. This is known as ‘fraudulent calumny’.

You can also challenge the validity of a will if you believe:

• It was fraudulently prepared or signed
• It did not comply with the rules of formality set out in the Wills Act 1837
• A particular clause in the will should be interpreted in a specific way

If you consider that you have grounds for challenging the validity of a will on any of these grounds, it is important to act quickly. You can enter a Caveat to stop a Grant of Probate from going through.

For more guidance on how Caveats work, please click here. This article also provides useful guidance on what can be done when someone has entered a Caveat that is preventing you from obtaining a Grant and the steps you can take to have that Caveat removed.

What if a Grant of Probate has been issued?

If a Grant of Probate has already been issued, then it will make matters more complicated but a challenge can still be bought. We would need to consider bringing an application to have the Grant revoked and seek an assurance from the executors that the estate will not be distributed until your challenge has been addressed. However, you must act quickly because if the estate has already been distributed then there will be very little that can be done.

How can an Inheritance Act claim be defended?

Executors (or personal representatives) owe a fiduciary duty to all beneficiaries to act in their best interests and so should remain neutral in any dispute.

If you are an executor or beneficiary and have received notification of a proposed claim, we can assist. We can help assess the strength of that claim, in line with provision made in the Act as well as earlier cases decided by the courts and provide advice on how best to proceed.

Need more advice on your Inheritance Act claim?

Get in touch with our disputed wills and estate specialists for an initial conversation to see how we can help.