John Beecham has had a number of dangerous encounters and injuries already in his life. If he dies, will there be an argument over his estate?
With John’s complex household, and business, he has a lot of dependants. If he makes no Will and dies “intestate” the government effectively had a Will written for him, which almost certainly wouldn’t provide for everyone properly. Even if he makes a Will, might his mother think she should benefit more than the baby? Does he have any responsibility to continue housing his mother and brother?
Until 1975, a family such as John’s would just have to hope that his Will (or the intestacy rules) made reasonable provision for them. Since 1975 the Inheritance (Provision for Family and Dependants) Act 1975 has changed all that. Originally known as “The Mistresses’ Charter” it was brought in to protect people who had a moral right to continued support but who didn’t get it – whether that was the overlooked mistress or the abandoned wife (or child, or anyone else being supported before the person who died).
My colleague Tiffany Benson commented that the Inheritance (Provision for Family and Dependants) Act 1975 (“the 1975 Act”), enables financial provision to be made for those who:
• have not inherited as a result of intestacy (where there is no Will);
• have been left out of a Will entirely or;
• have not been left as much as they need (under a Will or intestacy).
The 1975 Act enables the court to vary the distribution of the Deceased’s estate for certain family members and dependants, where reasonable financial provision has not been made. Who can make an Inheritance Act claim?
In order to bring a claim under the 1975 Act, the Deceased must firstly have been domiciled (which can be different to residence) in either England or Wales at the time of their death. So the first question on John’s death, is whether although living in India, would John still be deemed domiciled in England? If, as a result of his assets, finances, or conduct, it would be deemed that John has changed his domicile of origin from England to India, then a 1975 Act claim could not be brought by anybody.
Assuming for now that John would still be deemed domiciled in England, the next question is whether those interested in his estate fall within one of the classes of applicant set out in the 1975 Act entitled to bring a claim? These are listed in S.1 of the 1975 Act and include spouses (and former spouses), a cohabiting partner of 2 years or more, a child (or person treated as a child), or anybody maintained financially by the Deceased.
August, would be a qualifying applicant, as John’s child. John has an obligation to provide for his minor son financially. John’s mother and, potentially, John’s brother and Aunt of August, may also be qualifying applicants, if they can demonstrate that John has been maintaining them; for example by providing them with a roof over their heads free of charge and/or providing them with a personal allowance immediately before his death.
If any of these individuals do qualify as an applicant, the next question is whether John’s Will (if he has one), or the rules of intestacy (if John does not have a Will), fail to make reasonable financial provision for them, having regard to a number of factors provided within the 1975 Act. Such factors include the size and nature of John’s estate and the needs and resources of the named beneficiaries under John’s Will or intestacy. Do Inheritance Act claims have a time limit?
A claim under the 1975 Act has to be issued at court within 6 months of the date of the Grant of Probate (or Grant of Letters of Administration) being issued in John’s estate. Therefore it is vital that if any members of John’s family believe they have a claim it is made as soon as possible. Only in exceptional circumstances with the permission of the Court, can claims be brought outside of the 6 month time limit.
The cases brought under this Act are sometimes tragic, but always interesting – and can be expensive if litigated through the courts. In many cases the situation could have been avoided with forward planning. In others, early action and mediation could have saved costs. The right advice, from a specialist, is, as ever, crucial. Hewitsons has a team of specialists in contested estates. If you would like to discuss making, fighting or preventing a claim, please contact Tiffany Benson on 01604 463340 or click here
to email Tiffany.