It may seem a contradiction in an article explaining how to challenge the will of a deceased, but in England and Wales there is no law which forces people to leave a portion of their wealth and property to their family, instead we have complete freedom to do as we please.
However, it is expected that people will exercise their freedom with responsibility, leaving reasonable provision for their family and those who are financially dependent upon them.
It wasn’t always so and in the Victorian era the story of the irrational father disinheriting his wife and children was an all too common occurrence. Reform, when it came, originated from New Zealand when, in 1900, their Parliament passed the Family Protection Act which enabled their courts to overturn a will which failed to provide proper maintenance for spouses and children. It was a revolution for its day, but it wasn’t until 1938 that the British Parliament enacted similar legislation, passing the Inheritance (Family Provision) Act.
The people who could bring a claim were sharply limited by this new law and, of course, the new Act made careful distinction between spouses and anyone else. A disinherited widow or widower was seen as a special case with a much stronger moral claim against the deceased’s estate than anyone else.
In Britain today the key law that governs this area of family life is a 1975 act of parliament known as the Inheritance (Provision for Family and Dependants) Act, which directly repealed the earlier 1938 law.
Who can bring a claim?
When considering whether you can bring a claim the first question that has to be asked is did the deceased die domiciled in England and Wales (different rules apply for Scotland and Northern Ireland). If the answer is no then no claim can be made.
Where the deceased did die domiciled in England and Wales then, regardless of whether there is a will or not, only the following relations can bring a claim.
- The widow or widower, including surviving civil partners.
- A divorced spouse or civil partner who hasn’t remarried.
- Any son or daughter.
- Anyone, not being a son or daughter of the deceased, who was treated as the child of the deceased’s marriage.
- Anyone, whether mentioned above or not, who was being directly maintained by the deceased.
In the case of a divorced former spouse or civil partner there may be a bar to claiming which would have been agreed at the time of the divorce settlement. This would be contained in the order dissolving the former marriage or civil partnership.
What are the main points when considering making a claim?
There is no moral assessment of whether the provision (or lack thereof) made by the deceased was right or wrong. Instead, it is a question of did the will or intestacy (where there is no will) make reasonable financial provision. If the answer is no and you fall within the definition of a family or dependent person as set out above, then you can make a claim for reasonable provision.
What is reasonable is determined by looking at the matter objectively, impartially and without bias.
The process is not automatic. Except in the cases of children or the mentally incapacitated, nobody will make your claim for you, if you don’t assert your right to challenge what you feel to be an unfair arrangement no-one can.
For those who are under the age of 18 or are mentally incapable then a claim could be brought on their behalf by their parent, guardian, attorney or court appointed representative.
The claim is a financial one and is always against the net estate. This is an important point that many people miss as the net estate can, and often is, a very different figure from the sum declared to HM Revenue and Customs for inheritance tax. The net estate will not include any property passing automatically to the surviving co-owner, such as joint bank accounts or (in some circumstances) a house.
What is reasonable?
The answer to this question will depend on who is asking as there are two categories of claimant; the spouse and everyone else.
For everyone other than the spouse (or surviving civil partner) reasonable is the sort of financial provision that would be needed for maintenance. This is a lower standard.
Whereas for widows, widowers, surviving civil partners; there is the much higher non-maintenance standard. As a rule of thumb you might ask the question, is the provision provided to the spouse at least equal to what he or she might have received had that marriage ended in divorce rather than death?
Adult children – it would be natural to think that an adult child with independent financial means of support would have a weak claim for maintenance. This was certainly the case in the leading decision of Re Coventry from 1980 when the Court of Appeal dismissed the claim of an adult son who made a claim for a greater share of his late mother’s estate, a 74 widow who died without a will.
However, to treat the matter so simplistically would be wrong as was demonstrated in the recent case brought my Mrs Ilott, an only child, against her estranged mother’s will which left the almost half a million pound estate to three charities. Mrs Ilott challenged and won in the first court, securing £50,000, she then complained to the Court of Appeal asking for a larger award and won her appeal as well.
Short marriages or civil partnerships – when considering a claim by the widow, widower or surviving civil partner of a very short union the duration is a relevant factor.
The case of the late Derrick Cunliffe, who died in 2003 after a one-year marriage to a much younger woman he met the year before that, is an example of how the courts view short marriage in the context of one party to the marriage dying and the survivor claiming reasonable provision. Whilst the court’s starting point may be to ask how the finances might have been spilt had the marriage ended in divorce not death, they recognised that that might not produce the right result in a claim against the deceased’s estate. In the Cunliffe case the court suggested that where the marriage was short they wouldn’t necessarily be as ungenerous with a widow and they would be with a divorcee.
In other cases the relationship may have started long before the formal marriage or civil partnership and this would be a strong factor in assessing the strength of the claim.
The financially maintained – It is possible for anyone to make a claim that they were being maintained by the person who died immediately before death and in this context maintenance means financial support.
The first important case under this heading was brought in the late 1970s against the will of Constance Wilkinson after her death by her sister Gladys Neale.
Before 1975 a brother or sister couldn’t bring a claim on the strength of their blood relationship to the deceased because they were not considered close enough family.
Gladys went to live with her sister Constance, who was a childless widow suffering from arthritis, in 1969 when she was 61. She provided Gladys with free board, lodging and paid for all her expenses and in return Gladys provided her sister with care and companionship in the years before her death. Constance died in 1976.
The will left the bulk of the estate someone else and Gladys felt this was not fair so claimed for reasonable financial provision, by way of a lump sum and periodical payments, out of her sister’s estate. She won.
From the facts of that case it is clear that the question of maintenance is determined by looking at what was received as against what was given. Thus if Gladys had been asked to pay all her own expenses and for the board and lodging she would not have succeeded in claiming she was maintained.
Is there a deadline?
If you are considering making a claim then you have 6 months from the date of the grant of representation issued by the probate court.
The courts do have the power to allow a claim out of time but that extension is rarely granted.
However, withholding important information from a potential claimant whilst you wait for the time limit to expire will not be tolerated by the courts. This is what happed to Mrs McNulty in the mid 1999 when she made a claim 3 ½ years out of time. .
The matrimonial home passed to Mrs McNulty but the deceased left his interest in his business to his trustees on trust to pay the widow a weekly income for life and after her death to his sons equally.
The sons deliberately withheld relevant information as a result of which the business premises were valued for probate in January 1995 at £175,000 when the value was, in fact, significantly more. Disputes arose between Mrs McNulty and her sons in 1995. They stopped paying her weekly income. It was not until June 1998 that she became aware that the potential value of the land was greatly in excess of £175,000. The claim was started in April 1999. By the time of the hearing in 2001, the business had been wound up and the land sold for £1.6m.
The court granted the extension of time and the key factor was the dishonesty of the sons.