Following a death, relatives, dependants and others can challenge someone's will by going to court and claiming 'reasonable financial provision' from the estate. Equally, if someone dies 'intestate' (ie they don't have a will) and beneficiaries are not happy about their inheritance (or lack of), they may be able to make a claim under intestacy rules
Who can claim for reasonable financial provision
The following can make a claim against an estate:
- Any spouse or civil partner.
- Any former spouse or civil partner, provided they have not remarried or registered a new civil partnership, and provided no court order was made at the time of their split that specifically precludes them from bringing such a claim.
- Any other person with whom the deceased was cohabiting continuously for the two years immediately preceding death as spouse or civil partner.
- Any children (which includes illegitimate, adopted and adult children, and children conceived but not yet born at the time of death, but not stepchildren unless they have also been adopted).
- Any person who the deceased treated as a child of the family in relation to any marriage or civil partnership and who was dependant (eg a former spouse's child from a former relationship).
- Any other person the deceased 'maintained'. This means they were making a substantial contribution towards their reasonable needs (whether in cash or with something else of value) up to death, on the basis that he or she had assumed responsibility for them. The court will look at the type, value and purpose of the payments, and how long they were being made.
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What the court can order
If the court decides to make reasonable financial provision, it can order:
- Regular payments from the estate for a period of time.
- A lump sum payment.
- A transfer of property from the estate.
- Setting up of a trust (eg to provide a home for the spouse to live in for life).
- Variation of a post-marriage settlement.
The criteria for making a claim
Spouses or civil partners do not have to be in financial need or financially dependent on the deceased to make a claim. The court will take into account:
- Their age.
- Whether they are responsible for minor children, and its effect on their earning capacity and ability to retrain.
- Their contribution to the family.
- The length of the relationship and any separation.
- What they would have received if they had, instead of the death, divorced each other or dissolved their civil partnership.
However, there are special rules if there has been a judicial separation or separation order, and if there has been an application to the court for financial relief in, for instance, divorce proceedings.
For former spouses and civil partners, the court can take account of age, children and contribution to the family. The circumstances of the divorce or dissolution may also be relevant, for example, how long ago they split up, if they agreed a clean-break settlement and any evidence that they may have misrepresented their assets or income.
Other applicants will only get financial provision if they are in need or were financially dependent on the deceased. There are statutory guidelines that the court takes into account. These include:
- The applicant's present and future financial needs and resources.
- The present and future financial needs and resources of any beneficiary of the estate.
- The deceased's obligations and responsibilities towards the applicant and towards any beneficiary under the will.
- The size and nature of the deceased's estate.
- Any physical or mental disability of any applicant or beneficiary.
- Any other matter (including the conduct of the applicant or any other person).
An adult son cannot simply claim that, as a child, he expected to inherit. He would have to show that he was in financial need and that there were special circumstances. These might be that the deceased made promises to him or behaved towards him in a way that implied he felt some additional obligation towards him.
Even then, the smaller the estate relative to the competing claims, the less likely his claim will succeed. And if, for example, the deceased has explained in the will or in a separate note why nothing was left to the applicant, this can be taken into account - although the court is not bound to follow the deceased's wishes.
Time limits on dependants' claims
When a person dies, the people named in the will to deal with the estate (the 'executors') or, if there was no will, the people the law says are entitled to deal with the estate (the 'administrators') must apply to the court for an official document that proves they are the executors or administrators. This is a 'grant of probate' or 'letters of administration'.
A claim for reasonable financial provision must be made within six months after probate or letters of administration have been issued, although the court can extend this period in certain circumstances (eg if the applicant has not made an earlier claim because of negotiations with the executors or administrators).
Other reasons to challenge a will or inheritance
Other ways to challenge a will include:
- If there has been 'undue influence' on the deceased at the time the will was made.
- Mental incapacity of the deceased.
- Lack of the necessary legal formalities (eg the signing and witnessing of the will).
NB: This guidance applies to England and Wales only. Different rules and procedures apply in Scotland and Northern Ireland.