Claiming Against An Estate

The law of England & Wales, unlike that of many other countries, generally presumes that one is free to leave one’s worldly goods to whomever one chooses.
However, in certain circumstances the Courts will consider a claim which seeks to change the way in which one’s estate is to be distributed, whether or not one has made a will:-

a) Inheritance (Provision for Family & Dependents) Act 1975

The Act allows certain categories of person to bring a claim against an estate, where they feel that an otherwise valid will, or the general rules on intestacy, fail to make sufficient provision for them.

The categories are:-

• A spouse or civil partner – even if separated from the deceased.
• A former spouse – not able to claim if re-married prior to the date of death.
• A cohabitee – a person who had been living with the deceased, effectively as husband or wife, for a period of two years prior to death.
• A child – regardless of age and including adopted children.
• A person treated as a child of the marriage - e.g. a stepchild.
• A person who was fully or partly financially dependent upon the deceased - the deceased’s contribution must have been substantial and have continued up to the date of death.

NB This means that siblings, parents, cousins and other family members are unable to claim, unless they were maintained by the deceased immediately prior to his death.

In deciding what is ‘reasonable’ the Court will generally look at all the circumstances, including;

• The size of the estate
• The financial needs and resources of all the parties concerned
• Any obligation which the deceased had towards the parties
• Mental or physical disability of the parties
• Any other matter which the Court considers relevant – this may include the conduct of parties

b) Claims based on promissory estoppel

This is a growing area of law, reflecting the legal principle that, in certain circumstances, it is unfair to allow a person to go back on a promise.

The Courts will intervene if a deceased person has, during his lifetime, made a promise to another of financial provision on his death and fails to make such provision. This will only be so, however, if the recipient of the promise is able to show:- 

        a) That the promise was made; and 
        b) They are now worse off as a result of things that they have done in reliance on that promise

If you believe that you may be entitled to pursue either of the types of claim referred to above then please contact one of our offices in order to make an appointment to meet with our solicitors for further advice.