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How To Make A Successful Inheritance Claim

Posted: Monday, 23 September 2019 @ 09:43

One of the most important thing to do is to ensure that you are eligible to make a claim. 

The persons eligible to make a claim emerge from  law as laid down in the Inheritance (Provision for Family and Dependants Act) 1975: (IPDFA) 

The Deceased must be domiciled in England and Wales 

The person claiming must be  one of the categories of litigant and must be one of the following categories:

i) the spouse or civil partner of the deceased;

ii)  former spouse or former civil partner of the deceased, but not one who has formed in subsequent marriage or civil partnership; 

in the same household as the deceased, and as the husband or wife or civil; partner of the deceased   

iii) a child of the deceased; 

iv)  any person (not being a child of the deceased) was treated by the deceased as a child of the family;

v) any person immediately before the death of the deceased was being maintained, either wholly or partly, by the deceased.  

What can you claim? 

The approach of the Court is in an objective test with two stages:

Whether reasonable financial provision has been made for the applicant by the deceased under the will (or through the intestacy rules);

If the Court finds that reasonable provision has not been made, it then considers what, it any provision should be made.

The decision is based on facts known at time of application and not time of death.

What can a Spouse/Civil Partner Claim?

In the case of an application made by subsection (1)(a) above by the husband or wife of the deceased (except where the marriage with the deceased was the subject of a decree of judicial separation and at the date of death the decree was in force and the separation was continuing), means such financial provision as it would be reasonable in all the circumstances of the case for a husband or wife to receive, whether that provision is required for his or her maintenance.

Under the Civil Partnership Act 2004 the Court has power to treat registered same sex couples in the same way as married couples for the purposes of the 1975 Act.

Can A Former Spouse Claim?

A spouse /c-p whose marriage to deceased has dissolved can apply for provision provided he or she has not remarried. If she or he remarries subsequently the claim will be limited to one of maintenance between date of death and remarriage.  

Can Other People Claim On the Estate? 

There are other categories of people who can claim.

Reasonable financial provision is limited to what is “reasonable in all circumstances for the applicant to receive for his maintenance.”

The courts have a wide discretion when considering what represents reasonable. In Re Coventry 1979 3 WLR “above the breadline“ was reasonable and re R E decd 1966 1 WLR “sufficiently to enable the dependant to live neither luxuriously nor miserably, but decently and comfortably according to his or her station in life.” 

What is the position with respect to a Cohabitee?

The Court will have regard to the age of the applicant and the length of the period during which the applicant lived as the husband or wife or civil partner] of the deceased and in the same household as the deceased the contribution made by the applicant to the welfare of the family of the deceased, including any contribution made by looking after the home or caring for the family.

What is the legal position with respect to a Child of the Deceased?

This class of potential Claimant includes minors, illegitimate children and adopted children. It does not include a natural child who has been adopted by others. the court shall, in addition to the matters specifically mentioned in legislation have regard to the manner in which the applicant was being or in which he might expect to be educated or trained, and where the application is made by virtue of section 1(1)(d) the court shall also have regard— to whether the deceased maintained the applicant and, if so, to the length of time for which and basis on which the deceased did so, and to the extent of the contribution made by way of maintenance; to whether and, if so, to what extent the deceased assumed responsibility for the maintenance of the applicant; to whether in maintaining or assuming responsibility for maintaining the applicant the deceased did so knowing that the applicant was not his own child.

What Orders Can The Court Make?

If the Court decides to make an order this can be done in the form of: Periodic payments A Lump sum A settlement The acquisition of property The variation of an existing settlement

What are the practical steps to ensure victory in A Court Case?

If you are making a claim consider making a series of checks on the evidence and be ruthless in assessing the financial worth of the claim. Also, remember a 1975 Act claim is not a challenge to the validity of the will. A caveat can be a useful step in blocking the probate and protecting funds but if that caveat is challenged it will need to be withdrawn to minimise risks on costs.  Indeed, if you lodge a caveat on erroneous grounds there is legal exposure.

What Other Practical Steps Can You Take? 

A standing search is a sensible move to see if a grant has been issued and if note you can be notified once this happened. One of the crucial aspects of the IPFA Claim is the ability to link or (unlink) if acting for the Executors between the parties. Given this, you want to have a thorough overview of the documents which can include the following: Death Certificate Grant of Probate/letters of administration Will/former wills Letter of Wishes/Any relevant correspondence on will making intentions Birth Certificates Bank Statements/Credit Card Statements of both deceased and applicants Photographic/Email evidence of relationship Evidence of Applicants – debts/financial needs Evidence of Applicant Earnings Photographs, Cards – Evidence of Applicant Linking to Deceased/ Evidence of Deceased Linking to Non-Applicant

Are There Any Other Specific Tactics?  

At this level, it comes down to emotion and money. It is critical at an early stage to assess the size and nature of the estate and whether it is worthwhile for either party to make/resist a claim. Fundamentally, a key question to ask – Is there enough in the estate for the amount obtained/given to exceed legal costs in obtaining that provision. Ultimately an estate which can appear significant can be undermined by debt, Inheritance tax liability and/or high administration expenses. Ultimately is it worth litigating about? It is better to ask these questions at an early stage rather than at a later stage. The Executor should go through this process and should have no hesitation in communicating the lack of money within the estate if he she thinks there is.

What Things Can A Would be Claimant Do? 

If making a claim  focus on the following documents to try to see how much is within the estate: Obtain a Copy of the grant – (this shows the size of the estate) Ask from the Executors – Evidence of Assets, whether the deceased held property.

What Is the Court's View of Joint Property?   

Joint Property The court’s view of property which is within joint tenancy is governed by s 9 of IPFDA 1975 (as amended by paragraph 7 of Schedule 3 to the IPTA 2014). Section 9 permits the Court to treat the deceased’s share of this property as part of the deceased’s net estate to such an extent as the Court considers to be just and equitable.

What Conduct Should You Adopt? 

There is no Practice Direction to the Civil Procedure Rules relating to IPFDA Claims dealing with preaction conduct provides that, in cases not covered by any approved protocol, the court will expect the parties to act reasonably in exchanging information of relevance to the claim and generally in trying to avoid the necessity for the start of proceedings.  You can propose to follow the ACTAPS Practice Guidance for the Resolution of Probate and Trust Disputes (“the ACTAPS Code”), where a claim is intimated under the 1975 Act. At this point in the early stage in the case it is a good idea to pressurise the opposing party to mediate. It is useful to send correspondence to the other side reminding them that a refusal to mediate is likely to lead to adverse costs penalties. If resistance remains it can be quite useful to attempt to take the high moral ground and remind them to act in a reasonable and proportionate way in all dealings with each other.