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Left out of a will? Act quickly to claim under the Inheritance Act 1975

24 January 2024

When writing a will, you can leave an estate to whoever you like. However, leaving a relative or dependent out of a will doesn’t necessarily mean they won’t benefit; if the relative acts quickly, they may be able to claim ‘reasonable financial provision’ under the Inheritance Act 1975.

Contesting an inheritance is not easy and not everyone can claim, but if eligible, then what amounts to ‘reasonable financial provision’ is up to the court. The financial position of the person making the claim will be assessed and the court will also consider what they require for maintenance.

If you’ve been left out of a spouse’s will, the test is more generous and one factor that may be considered is what would have been received if it were a divorce. This may be a lot more than what is required for ‘maintenance’. Under the Inheritance Act, a claim must be issued at court within six months 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 and in the past, they’ve often agreed with executors to enter into a ‘standstill agreement’ – essentially putting the six month period on pause – while the parties resolve the claim outside of court.

However, there have been occasions in which the legality of these standstill agreements have 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.

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 parties have a clear written agreement.

The moral of the story is, if you want to make a claim, you need to act quickly. If you are a spouse, a close family member or dependent of someone who has died but you have been left out of their will, please get in touch for advice.

Our expert team 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 lawyers approach matters in an understanding, practical and sympathetic way.

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Disclaimer: All legal information is correct at the time of publication but please be aware that laws may change over time. This article contains general legal information but should not be relied upon as legal advice. Please seek professional legal advice about your specific situation - contact us; we’d be delighted to help.
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