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FAQs - Does a Will Trump an Inheritance Act Claim?

on Monday, 06 September 2021.

Will disputes are a real concern for those who have taken the trouble to prepare their Will.

Although the starting point is that you can leave your assets to whomever you choose in your Will, the Inheritance Act* nonetheless acts as a safety net for eligible claimants who can demonstrate that they require more financial provision than they are due to receive under the Will, which in many cases is nothing.

Who Can Bring an Inheritance Act Claim?

These people are all automatically eligible:

  • spouses or civil partners including former spouses/civil partners
  • children, including adults, and those treated as a child of the family by the deceased
  • cohabiting partners as long as they cohabited for two years or more until the deceased's death
  • anyone else who was financially dependent upon the deceased until their death.

Does That Mean a Claimant Will Automatically Succeed?

No. There is a financial stress test. Claimants have to demonstrate they are in financial need to some extent and that they are not adequately provided for under the deceased's Will or, if there is no Will, under the Intestacy Rules.**

Is That the Only Factor?

No. There are five other factors to consider too. Any physical or mental disabilities the claimant has, any obligations that the deceased had towards the claimant, the conduct of the claimant or any other matter which it's reasonable for the court to take into account. These are weighed against the financial position of the beneficiaries in the Will or of an intestacy and within the context of the size and nature of the estate.

How Much Will a Successful Claimant Get?

Outcomes vary enormously on the facts of each case and there is no set percentage. However, expert advisors can typically advise on the range of likely outcomes, having assessed the individual facts for claimants as well as advising those faced with defending a claim.

Is There a Time Limit for Bringing a Claim?

Claimants have six months from the date of the Grant of Probate to issue their claim at court without requiring the court's special permission to do so. After which, they have a further four months to serve the claim on the executors and beneficiaries.

I Am Concerned About a Potential Claim, Is It Worth Me Making a Will?

Yes it is. It is best to mention your concerns to your advisor when you make your Will as the careful choice of your executors is crucial if you do not want family members dealing with the estate administration and maybe a claim too as executors. There are other points you can consider, including preparing a list of reasons why you wish to exclude someone - but seek expert advice as these can backfire if not carefully prepared.

If you are concerned about a potential Inheritance Act claim we are experienced in advising both claimants and defendants to reach a resolution. Please contact Fiona Lawrence in our Private Client team on 07909 901370, or complete the form below.

* The Inheritance (Provision for Family and Dependants) Act 1975.

** The Intestacy Rules direct who inherits where there is no Will.

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