Claims under the Inheritance Act

Hope for success fees in claims against estates under Inheritance (Provision for Family and Dependants) Act 1975

Claims under the Inheritance (Provision for Family and Dependants) Act 1975 (“the Inheritance Act”) are usually made by disappointed beneficiaries or people excluded from wills. The Inheritance Act allows family members and others to claim against an estate if they have not been reasonably provided for. 

Typically, these claims are made by people who are in financial need. Therefore, they may not always have the money available to their legal costs.  Solicitors can enter into no win no fee agreements with their clients in these situations. It basically means that if their claim is unsuccessful and they do not receive anything from the estate, then they do not have to pay their solicitor anything. 

If the claim is successful and the client does get something from the estate then they have to pay their solicitor for the time they spent, and law firms usually charge a success fee on top. Success fees are usually a percentage of the basic fee. As an example, if the solicitor's costs are £10,000, and the success fee is 50%, the total the client has to pay their solicitor is £15,000.

With claims under the Inheritance Act, if a claim is successful, the person can usually recover their costs from the estate or the other beneficiaries who resisted their claim. From April 2013, the law changed to mean that a success fee could not be recovered from the opposing party. 

However, two recent cases concerning claims under the Inheritance Act have got around this rule. The claimants in these cases asked the court for an amount for their maintenance, but also an additional sum to pay their success fee.  

Effectively this is because there was little point in them claiming, say, £50,000 that they needed for their maintenance when they would have to pay a large sum of that to their solicitors.  The judges in these two cases awarded the applicants additional sums to cover their success fees as it was deemed to be needed for their maintenance. 

So who can claim under the Inheritance Act ?

People who can make a claim under the Inheritance Act are:

• Spouse or civil partner 
• Former spouse or civil partner 
• Child of the deceased
• Someone treated by the deceased as a child
• The Deceased’s cohabitant of at least 2 years 
• Someone who was maintained by the deceased 

The deceased must have died in, and been domiciled in, England and Wales. 

If any of the above people feel that the deceased’s will, or the rules of intestacy which apply when someone does not have a will, does not leave them reasonable financial provision. 

What is a reasonable financial provision?

For a spouse or civil partner, the reasonable financial provision means how much it would be reasonable for a husband, wife or civil partner to receive. The amount is not limited to what is required for their maintenance. 

With anyone else who makes a claim, the reasonable financial provision means what would be reasonable in all the circumstances for their maintenance.

How much will someone receive?

It all depends on the individual’s circumstances.  The factors that are considered are:

• The size and nature of the estate
• The financial needs and resources (both now and in the foreseeable future) of the person making the claim
• The financial needs and resources (both now and in the foreseeable future) of anyone else who makes a claim and the existing beneficiaries
• Any obligation and responsibility to the deceased had towards the person claiming and the beneficiaries
• The physical and mental disabilities of the person making the claim and the beneficiaries
• Any other matter, including the conduct of the people involved, that may be relevant 

For spouses,  civil partners and cohabitants, the court will also consider the age of the person claiming and the length of the marriage/cohabitation, and the contribution the person claiming made to the welfare of the deceased’s family, including looking after the home and caring for the family. The starting point for claims by spouses or civil partners is what they would have received in divorce proceedings. 

With children, the court will consider the manner in which the child might be expected to be educated or trained. For people treated like a child of the deceased, the court will also look at:

• whether the deceased maintained them and if so, for how long, on what basis and the extent of the maintenance
• whether the deceased assumed responsibility for maintaining the applicant 
• If the deceased maintained the applicant or assumed responsibility for doing so, whether the deceased did so knowing the applicant was not his own child; and 
• The liability on any other person to maintain the applicant 

It is not automatic that someone will receive a lump sum. The court has a wide range of powers, which includes the transfer of property, periodic payments or a life interest in a property. 

How long does someone have to make a claim?

The time limit to make a claim is 6 months from the grant of probate or letters of administration being issued. It is therefore often necessary to enter a standing search with the probate registry. This means that when a grant is issued, you will be notified. 

Claims can be made out of time, at the court’s discretion. 

If you do not feel that you have received reasonable financial provision from an estate, or are defending a claim someone else is making, please contact our specialist contested probate team at Birkett Long for legal advice. 

We are the largest contested probate team in Essex and have vast experience dealing with claims under the Inheritance (Provision for Family and Dependants) Act 1975. In certain circumstances, we do act for clients on a no win no fee basis so please call us on 01206 217623 to discuss your circumstances.  

I am working from home, but available to talk if you need any further advice. If you have a question, I would much rather you ask and we spend some time having a free chat, than not. I am based in our Colchester office and can be contacted on 01206 217307 or [email protected].

Contesting a will - Birkett Long Solicitors