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The Inheritance Act (1975): What is it, and can you make a claim?

19 March 2021

The Inheritance (Provision for Family & Dependents) Act 1975 can be a lifeline for those who have been overlooked when it comes to inheritance.

Unlike some jurisdictions, under the law of England and Wales, a testator has complete autonomy to decide who is to inherit from their estate.

A testator could therefore choose to exclude a child or someone else where the relationship has broken down. They may choose not to leave any of their assets to their family members at all, instead leaving their entire estate to a third party or charity.

Whilst a will in such terms is permitted, it may be the case that a testator has overlooked the needs of a particular individual who would ordinarily expect to benefit, or a will was drawn up before that person came into the testator’s life. Alternatively, it may simply be the case that the deceased failed to prepare a will at all. In that case, the rules of intestacy would apply; these are rigid and do not account for the complex nature of relationships. Unfortunately, a cohabitee of the deceased, who was not their spouse, would have no right to benefit no matter how long the couple had lived together.

The consequences of this can be severe; individuals may face the prospect of losing their home, or stop receiving financial help which would ordinarily have been provided by the deceased.

In such circumstances, those not adequately provided for can consider bringing a claim under the Inheritance Act. Only certain persons are entitled to make a claim, which includes a spouse or civil partner; former spouse or civil partner; a cohabitee; a child of the deceased (minor and adult); a person who was treated by the deceased as a child of the family, and a person being maintained by the deceased.

Some claimants may be easy to identify, such as a spouse or child, but it is not always straightforward. For example, for a cohabitee to benefit they must have been living as if married to the deceased in the same household for the two years immediately prior to death. There may be difficulties determining exactly when the couple started to live together, especially in cases where there are second homes. To prove they are an eligible claimant, a cohabitee may need to provide bank statements, utility bills and other evidence to establish the relationship. Any absence by either the claimant or the deceased in the two years prior to death will need to be critically examined to ascertain whether or not this was due to a relationship break-down or perhaps due to circumstances, such as the need to travel for work.

Second marriages are now commonplace and this has resulted in a rise of claims by step-children. Often a spouse will leave everything to the surviving partner, meaning their children do not benefit in the first instance. It may be incorrectly presumed all children from both parties’ previous relationships with benefit. The first spouse to die may leave a substantial estate but the second spouse leaves everything to only their own children. Where a person believes they were treated as a child of the family, for example a step-child, a forensic analysis is required to understand the relationship between the parties.

Where a person is not an eligible claimant under any of the other categories, they may be able to claim as a person being maintained by the deceased. This could include a person in a relationship with the deceased who is not considered a cohabitee, a former spouse who has remarried, or maybe just a friend. Anyone making a claim under this category will need to show that the deceased was making a contribution to their expenses. This is likely to require evidence by way of bank statements or proof that other substantial gifts were being regularly made by the deceased.

Determining whether an individual can bring a claim under the Inheritance Act can be tricky. If you have been excluded from an estate which you would expect to benefit from, please get in touch

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Email Jessica

A solicitor in our Legal 500-rated dispute resolution & litigation team, Jessica is experienced in assisting individuals, both claimants and defendants, on a wide range of disputes, with a specialism in inheritance and trust disputes.

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Jessica Whooley LLB (Hons)
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Jess Whooley, solicitor - Willans LLP
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