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Who could make a claim against my Will?

Feb 15, 2021

Under the Inheritance (Provision for Family and Dependants) Act 1975, a testator’s estate, that’s a person who makes a Will and dies domiciled in England and Wales, could be presented with a claim for reasonable provision from the following:

  1. The spouse or civil partner of the deceased;
  2. A former spouse or former civil partner who has not remarried or formed a subsequent civil partnership;
  3. A child of the deceased;
  4. Any person treated by the deceased as a child of the family;
  5. Any person who immediately before the death of the deceased was being wholly or partly maintained financially by the deceased;
  6. Any person who was at the time of the deceased’s death, and during the whole of the preceding two years, living in the same household as the deceased as the spouse of the deceased.

All the above categories could have a valid claim against an estate if adequate, reasonable financial provision was not made for them.

Will a claim against my estate succeed?

Whether a claim will be successful will be entirely at the discretion of the court. In essence, the court may make an award after balancing carefully the wishes of the deceased, the facts of the case, the interests of the beneficiaries and the available assets to satisfy those claims.

The role of the court is to carefully assess the needs of the parties concerned, whether it was the testator’s duty to satisfy those needs, and if it is reasonable for the court to interfere under the terms of the Act.

Caselaw has set out the following principles for the court to consider when hearing a claim:

  • A testator has testamentary freedom but at the same time, he/she has an obligation to make reasonable provision for a spouse or minor children.
  • The approach of the court should be a two-stage process:

o Was reasonable for the testator not to make provision; and

o In the event that the provision or lack of it, is unreasonable, the court must decide at their discretion what provision should be made under the 1975 Act.

In most cases where a dispute over a Will occurs (typically between family members) it is best to seek to resolve any disputes amicably. Where this is not possible then court action might be
the only alternative, but it comes at a cost both personally and financially.

Let us know if you would like to speak to our Private Wealth & Inheritance team about making a Will or with our Dispute Lawyers about contesting a Will, we would be happy to help.

Let us know if you would like to speak to our Private Wealth & Inheritance team about making a Will or with our Dispute Lawyers about contesting a Will, we would be happy to help. Please use the contact form below to send us your enquiry.

 

This reflects the law at the date of publication and is written as a general guide. It does not contain definitive legal advice, which should be sought as appropriate in relation to a particular matter.

Libia Roldan-McRobb

Libia Roldan-McRobb

Paralegal, Private Wealth & Inheritance

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