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How to claim under the Inheritance (Provision for Family and Dependants) Act 1975 (16 October 2019)

Date: 16/10/2019
Duncan Lewis, Legal News Solicitors, How to claim under the Inheritance (Provision for Family and Dependants) Act 1975

The Inheritance (Provision for Family and Dependants) Act 1975 is a crucial act and one that is highly regarded in obtaining a favourable judgment for relatives or dependants who have been disinherited in a will or if they have not been reasonably financially provided for. Thus, depending on the facts and particulars of a case, the act can allow a person to make a claim for reasonable financial provision from a deceased person’s estate.

Subsequently, provided a number of particular conditions are met, an applicant can be any one of the following:


  1. Spouse or civil partner

  2. Former spouse or civil partner

  3. Dependant of the deceased

  4. Child of the deceased

  5. Cohabitee


Judges have a wide scope of discretion to redistribute assets thus enabling relatives or dependants to inherit their entitlement from a deceased person’s estate. This restores justice and reaffirms the law that although there is testamentary freedom, one should not suffer if they strongly believe that they should have inherited from an estate.

In view of the foregoing, the factors that are taken into consideration are varied but include the following:

  • What is just and proper

  • Whether the estate has been distributed before a claim has been made

  • Why the claim was not issues on time

  • Whether the claimant has a strong case under the Inheritance Act if permission were to be granted for the claimant to pursue the claim.




Limitation

The limitation period to bring forth a claim under this act is six months from the date the Grant of Probate is obtained. However, should you wish to issue a claim after this time you must seek the courts permission. Accordingly, the courts are forthcoming in granting a claim out of time providing there are adequate and acceptable reasons justifying the delay, it should be noted however that this is not always guaranteed. To this effect, you must also show the claim has good prospects of success should it proceed to trail.



Recent Case Law

An example of a recent case being granted permission out of time is Cowan v Foreman & Ors [2019] EWCA Civ 1336. The Court of Appeal had reversed the original decision handed down by Mr Justice Mostyn.

Originally the parties had decided to enter into a standstill agreement to try and resolve the issues amicably and thus not enforcing the six month deadline. Mostyn found this to be unreasonable and said that the Claimant should have issued a claim within the six month deadline. Thereafter, the parties would have the chance to negotiate the case whilst putting court proceedings on hold. Furthermore, he found that 17 months was far too late to issue a claim without any exceptional factors to explain the same.

Ultimately, Lady Justice Asplin had said the decision was “plainly wrong”. The appeal was granted in the Claimants favour. To this end, the appeal suggested that the legitimacy of a claim is important opposed to “good reason or cause”. It also specifically looked at section 4 of the Inheritance Act 1975 which played a significant factor in connection with the decision relating to the appeal.

In addition, it is needless to say that a claim must be issued within the limitation period to have the best possible merits of success. It is imperative that claimants seek legal advice if they believe they have been put at a financial disadvantage in relation to a deceased person’s estate.


Legal Costs

In most circumstances, normal practice sees that the unsuccessful party pays the successful party’s legal costs. However, these costs are wholly decided by the judge and are based on a variety of factors. In some instances the costs may be met from the estate of the deceased if an agreement is reached between the parties involved.



Author Zeen Al Atroshi is a caseworker in the wills and probate department at the Duncan Lewis Solicitors Harrow office. She works under the supervision of wills and probate director Caroline Roche. Zeen handles a variety of wills and probate matters including contentious and non-contentious probate matters; Lasting Power of Attorneys; and declaration of trusts.

To contact Zeen directly call 020 3114 1297 or email ZeenA@duncanlewis.com



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