If you, or your children, were financially dependent on someone who has died and adequate financial provision has not been made for you in their will, you may have a claim against their estate. If someone on whom you or your children were financially dependent has died without a will or a valid will (otherwise known as dying intestate or an intestacy), you may have a claim against their estate. A child whose parent has died may also have a claim, even if they were not financially dependent on that parent at the time of their death.
The court can make such financial provision as it judges reasonable having considered the criteria set out in the Inheritance (provision for family and dependants) Act 1975 and having regard to all the circumstances of a case. If the claim is successful, this may result in cash payments being made from the estate or an order that property is transferred to the applicant including for their housing needs.
Claims need to be brought within a strict time limit. It is therefore essential to seek expert advice as soon as it becomes clear that insufficient financial provision has been made. This is also important as in some cases interim cash can be awarded to meet immediate financial needs.
If you are:
- contemplating bringing a claim against an estate, on behalf of yourself or your children;
- an executor facing a claim against an estate; or
- a beneficiary whose inheritance is at risk if a claim is successfully brought against an estate.
we can provide you with robust advice as to whether the claim is likely to succeed and a strategy that both protects you and that you are comfortable with in a dispute that may well involve close family members.
Our approach includes using alternatives to contested court proceedings including mediation where appropriate and not losing sight of the emotional impact the involvement of lawyers can have at such a difficult time.
Inheritance Act proceedings can cover several areas of the law and we can draw on the expertise of our family, private client, corporate, employment and civil litigation teams to produce the best possible outcome for you.
We offer a free 30 minute consultation on inheritance claims.
Frequently asked questions
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My partner has died and not made sufficient provision for me in their Will, what can I do?
An unmarried partner has no automatic right to their partner's estate if they die without making a Will. It is therefore essential that unmarried couples make a Will.
There are however certain circumstances in which you could make a claim against your partner's estate if you can show that you are being maintained by them prior to their death or you have lived with your partner as husband and wife for two years prior to their death. This provision also extends to same sex partners who are not in a civil partnership. In addition to this there are special guidelines for the court to consider such as your age, the length of your cohabitation and the contributions that you have made to the welfare of the family. Our specialist family law solicitors can advise you of your rights if your partner predeceases you and the appropriate course of action to achieve the best possible outcome for you.
Could the court ignore my father’s wishes if my brother contests his will?
The court will take into account as part of the evidence why your father chose not to include your brother in his will but ultimately the court does have the power to make an order that would be contrary to your father's wishes.
The court's decision will turn on the extent of your brother's financial need, the extent, if any, to which he was dependent on your father, combined with his conduct and your father's reasons for excluding provision for him.
This can be extremely hard to reconcile with the idea that a UK subject has the freedom to leave their estate to whom they choose and it is therefore essential to obtain specialist legal advice early to understand the strength of his claim. If your brother were successful in his application his legal costs could end up being paid by either you or the estate.
I am the executor and I know both the beneficiaries or the estate and the applicant personally. I believe strongly that the applicant does not have a claim, what can I do?
In your capacity as executor, your role within the proceedings is limited to providing the relevant information concerning the assets and liabilities of the estate. You are expected to take a neutral and risk an application to remove you as executor if you do not.
If you feel unable to act neutrally, or that you risk damaging your relationship with the other parties, you may want to take advice on stepping down as executor.
Weightmans has opened a new private client practice in Scotland with the appointment of family law specialist Noel Ferry to its Glasgow team.
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