Posted: Friday, 4 January 2019 @ 13:43
An inheritance claim can be a potentially big legal action.
In order to consider the legal position, you need to look at the key legislation namely the Inheritance and Family Dependants Act 1975
You can also use some case law as well which is helpful as well to help see what the applicant can get.
The approach is maintenance is to allow a person to live “above the breadline” or at subsistence level”(Re Coventry) or as in the case of Re Deed and “sufficient to enable the dependent to live neither luxuriously nor miserably, but decently and comfortably according to his or her station in life.”
So not a carte blanche for the applicant to get the whole estate.
The Act at section 2 and 3 gives pointers to which court is to have regard in exercising powers which are :
(a) the financial resources and financial needs which the applicant has or is likely to have in the foreseeable future;
(b) the financial resources and financial needs which any other applicant for an order under section 2 of this Act has or is likely to have in the foreseeable future;
(c) the financial resources and financial needs which any beneficiary of the estate of the deceased has or is likely to have in the foreseeable future;
(d) any obligations and responsibilities which the deceased had towards any applicant for an order under the said section 2 or towards any beneficiary of the estate of the deceased;
(e) the size and nature of the net estate of the deceased;
(f) any physical or mental disability of any applicant for an order under the said section 2 or any beneficiary of the estate of the deceased;
(g) any other matter, including the conduct of the applicant or any other person, which in the circumstances of the case the court may consider relevant.
Another way of putting it or a checklist of questions include:
What are the financial resources and needs of the applicant now or in the future and those of the of any other applicant or beneficiary of the estate?
Are there any obligations that the deceased had towards the applicant? Does the applicant suffer from any physical or mental disability?
What are the moral obligations owed to all Claimants?
What is the size and nature of the estate?
Are there any other matters, such as the conduct of any person the court may consider relevant, including lifetime provision and any written statement made by the deceased?
Ask these questions and then you are on the road to seeing how strong the claim is.