You can make a will leaving your estate to whoever you like. However, if you leave out a relative or dependent, they may still be able to claim ‘reasonable financial provision’ from your estate, under the Inheritance (Provision for Family and Dependents), Act 1975 (the ‘Act’).
Not everyone can claim, but if they are eligible, then what amounts to ‘reasonable financial provision’ is up to the court. The court will consider what is required for maintenance, and there will need to be a detailed assessment of the financial position of the person making a claim.
If you’ve been left out of a spouse’s will, the test is more generous and one of the factors a court may consider is what would have been received if it were a divorce. This may be a lot more than what is required for ‘maintenance’. You have to issue a claim under the Act at the court within 6 months of the issue of the grant of probate. After this, a claim can only proceed after an application to the court for permission, which is not always granted.
Given this relatively short timeframe, lawyers are often instructed at a late stage. In the past, they have often agreed with the executors to an estate to enter into a ‘standstill agreement’ (essentially putting the 6 month period on pause) whilst the parties try to resolve the claim outside of the courts.
Lately, there have been occasions in which the legality of these standstill agreements has been challenged. Where this has happened, lawyers have been forced to issue court proceedings to protect their clients, and then apply for a ‘stay’ in the proceedings (again, a pause in the case).
This meant that lawyers have had to prepare and issue the claim papers (at a cost to their clients) before fully exploring whether an out-of-court settlement could be achieved in the first instance. Recently, in the case of Cowan v Foreman (2019) the Court of Appeal found that while the courts don’t have to honour standstill agreements, they are unlikely to refuse permission for a late claim to be brought (provided all the potential parties have entered into a clear written agreement).
The moral of the story is, if you want to make a claim, you need to act quickly, so as not to prejudice your case. If you are a spouse, or a close family member or dependent of someone who has died but you have been left out of their will, please contact us for advice.
For specialist advice and a free consultation, please get in touch with our expert team, which includes members of STEP (the Society of Trust and Estate Practitioners) and ACTAPS (the Association of Contentious Trust and Probate Specialists); experts who are, by definition, the most experienced and senior practitioners in the field of trusts and estates and related disputes.
Independent legal guide The Legal 500 describes our team is “excellent in all aspects: almost immediate response times, with in-depth knowledge and experience.”
Legal awards and credentials aside, we’re a friendly team and will always explain things to you in a clear and practical way, and keep you updated on what’s happening with your case in a timely way.
Every case is different: while some require a robust approach, disputes of this sort are often extremely sensitive, many involving family relationships. Our experienced lawyers approach matters in an understanding, practical and sympathetic way.
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