Make A Claim Against A Deceased’s Estate
Sadly, there are occasions when a person dies and it is clear that they have not made proper provision for their loved ones in their will. That can obviously lead to there being some challenging and difficult conversations between the people who are technically legally entitled to the deceased’s estate and those who are morally might be entitled to the deceased’s estate. These situations can be confusing, stressful and upsetting.
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Make A Claim Against A Deceased’s Estate – Fixed Fee Initial Advice
If you would like help and advice in relation to whether you can make a claim against a loved ones estate simply call us free on 0800 3 10 11 12 or telephone 01536 276300 and ask for Adrian or Mandy at our Corby office or 01536 311690 and ask for James or John at our Kettering office. We would be delighted to initially assess whether your circumstances and potential claim is one that we can help you with. This is only a quick, initial chat over the phone. Normally in order for us to fully and properly advise you, we need to arrange a meeting for usually one hour on a fixed fee interview. This can be either face-to-face or over the phone or video call (Skype/FaceTime/WhatsApp).The cost for the initial assessment is £200 + vat making a total of £240.00.
If the deceased left a will then it might be possible to try and argue that the will is invalid in some way. This could be by arguing any of the following:
- 18 (unless Privileged) – The deceased was under 18 when they made the will.
- Mental capacity – The deceased did not have sufficient mental capacity to make a will.
- Intention to make a will – The deceased did not actually intend to make a will to apply on death.
- Know and approve contents – The deceased did not know or approve of the contents of the will.
- No Undue influence – There was pressure and undue influence placed on the deceased to make the will.
- Free from fraud or forgery – The will is a forgery.
- S.9 WILLS ACT 1837 – The legal formalities to make a will were not complied with
Inheritance (Provision for Family and Dependents) Act 1975 Claim
If somebody makes a Will or not, it is possible for their family and dependents to make a claim under what is known as the Inheritance (Provision for Family and Dependents) Act 1975. The Act provides protection and allows a spouse, children and other dependents to claim against an estate for dependency in the event of not being included in the Will or not being provided for under the laws of intestacy. The Court needs to consider whether the deceased has left a fair share of the family assets. This is assessed depending on a number of important factors.
The Act states that a Spouse or Cohabitee or Child or other person maintained by the deceased can potentially make a claim. The Applicant must be alive to claim and if they die then their personal representatives cannot continue with a claim.
The categories of persons who can potentially claim are as follows:
- Spouse/ Civil Partner (S1 (1) (a))
- Former Spouse/Civil Partner (S1 (1) (b))
- Cohabitee (living with deceased for two years as spouse of the deceased)ost-1996) (S1 (1))
- Child (S1 (1) (c))
- Person treated as child (Post 2014) (S1 (1) (d))
- Person who was maintained by the deceased immediately before death (S1 (1) (e))
Reasonable Financial Provision
The courts take an objective approach to assess whether the Provision for the applicant is Reasonable. Factors the court might take into account include:
- The facts of the case at the hearing;
- The deceased’s reasons;
- Changes in the Beneficiaries’ circumstances.
There are two different standards that are applied as follows:
SPOUSE- Reasonable financial provision in all the circumstances whether or not provision is required for maintenance
OTHERS- Reasonable financial provision for their maintenance only (In manner suitable to circumstances)
There is a two-stage process ADAMS V LEWIS (2001)
- Did the testator (deceased) fail to make reasonable provision (Using S3)?
- How the provision is assessed
Conditions For Making A Claim
The deceased must be domiciled in England and Wales;
There is also a SIX MONTH time limit from the date of issue of the GRANT of Representation in which to make a claim.
However, the Court does have the power to admit late applications in exceptional circumstances. To prevent an estate being distributed, a caveat can be lodged which prevents the Grant of Probate from being issued for 6 months. Alternatively, a Standing Search can be made to obtain details of every Grant of Probate issued in the past 12 months and in the next 6 months.
Common Guidelines For Applicants
Various common guidelines for all applicants include the following:
- Financial – Balancing Resources and Needs of All Persons with a claim against the estate;
- Moral obligations to all claimants;
- Size and Nature of the Estate;
- Mental and physical disability (taking into account DWP Benefits);
- Any Other Matter – e.g.Conduct, Statement from Deceased.
Spouse Civil Partner Claims – Additional Guidelines s3(2)
Additional guidelines for spouse and civil partner claims include the following:
- Age of Applicant;
- Marriage Duration;
- Financial contribution to the welfare of the family;
- Divorce Provision (what they could have expected as equivalent to, if the relationship had ended in divorced)
- Discretion –Divorce/Judicial Separation/Nullity -12 Months of Death & No Financial Provision.
In order to succeed with a claim, a cohabitee must have lived with Deceased for at least Two Years Before Death
Factors the court will consider:
- Age of Applicant;
- Period they lived together;
- Contribution by Applicant to the welfare of the Deceased and Family.
Considerations for Children
Factors to consider for children include the following:
- Type of Education;
- Extent of maintenance;
- Whether Deceased Assumed Responsibility;
- Whether it was Intended to Continue After Death;
- What basis for Assuming Responsibility;
- Length of Time Responsibility had taken place.
Child Of The Family
If a person was treated as a child of the family then the court will Consider:
- Manner of Education;
- Deceased Assume Responsibility for Maintenance;
- Period of time;
- Deceased knew Applicant was his child;
- Liability of Any other person for Maintenance.
In order to claim against an estate, children must have been maintained by the deceased prior to death. If they can prove this, they are entitled to reasonable provision for their maintenance. This does not include a share of the family assets.
Person Maintained By The Deceased
If the deceased made a substantial contribution to that person’s reasonable needs, then a claim might be viable. However, full commercial Claims are barred.
The court considers:
- Contribution & Length of Maintenance;
- Deceased Assumed Responsibility for Maintenance.
If there is no evidence of responsibility, then the claim will fail.