When someone passes away, their estate can become subject to disputes. Claims can be made whether there is or isn’t a Will, in connection to the distribution of the deceased’s assets. Before commencing a claim, it is important to understand the eligibility and timing requirements involved. Getting proper legal advice can help guide you through the process.
What counts as a claim
There are multiple different reasons for making a claim against an estate. If the terms of a Will or, where there is no Will, the intestacy rules have put you in a difficult position, routes to claim can include the following:
- Challenging the validity of Will due to lack of proper formalities
- Challenging a Will on the grounds that the deceased lacked the mental capacity to make it or was unduly influenced
- Disputing how an estate is being administered
- Under the Inheritance (Provision for Family and Dependants) Act 1975
- Claims based on promises made by the deceased
What can be claimed against an estate?
Types of assets and outcomes
A successful claim can result in a multitude of outcomes. Assets such as money, property or a share of the estate can be obtained. Specific personal possessions or gifts can also be won. Other interests claimants could stand to receive are reasonable financial provision or maintenance, or rights over property or housing.
Who can make a claim against an estate?
Whether there is a Will, or the intestacy rules apply, it is possible to claim for reasonable financial provision. This route can be pursued if an individual is not inheriting a penny, but also where they have received some benefit, yet consider the amount to be unreasonable.
However, under the Inheritance (Provision for Family and Dependents) Act 1975 there are particular eligibility requirements which need to be met in order to make a claim.
Eligible individuals
(a) Spouse or civil partner of the deceased
(b) Former spouse or civil partner of the deceased, who has not yet remarried
(c) Child of the deceased
(d) Persons treated by the deceased as a child of the family
(e) Other persons who before the deceased’s death was maintained wholly or partly by the deceased
(f) Cohabitant of the deceased
Should none of these categories apply, it is still possible to claim against an estate. For example, anyone with a legitimate interest in an estate can challenge the validity of a Will. It is worth remembering however, that an invalid Will means that the terms of the previous valid Will apply. If no such Will exists, the intestacy rules apply. Depending on your situation, it is possible there would be nothing to gain from doing this.
When can a claim against an estate be made?
It is important to know that there is a strict window of opportunity for claiming for reasonable financial provision.
Time limits
- Claims must be brought within 6 months of the Grant of Representation being issued.
- While the court does have power to extend the time limit, it will only do so if there is a good reason for the delay.
- Time limits for other types of claims vary, but the risk of missing these deadlines means that it is important to act quickly.
Getting legal advice from the outset allows for time for thorough consideration of the relevant details and the reasonable prospects of a claim.
How to make a claim against an estate
Once advice has been given from an inheritance dispute solicitor, documents and evidence relevant to the matter will need to be gathered together. An attempt at early resolution or negotiation to settle the issues in dispute, without the need for court proceedings, should also be considered.
If alternate means of resolving the dispute are unsuccessful, a formal legal claim will need to be issued and court proceedings may commence.
What the court considers
In claims under the Inheritance (Provision for Family and Dependents) Act 1975, the court considers a number of factors.
Key factors
- The financial needs of the applicant, along with those of other applicants and beneficiaries
- Any obligations or responsibilities the deceased had towards any applicant or beneficiary
- The size and nature of the estate
- Any physical or mental disability of any applicant or beneficiary
- Any other relevant matter, including the conduct of the parties.
These factors are used to determine whether the deceased made reasonable financial provision for the applicant. For spouses or civil partners claiming under the Act, provision must be ‘reasonable’ in all circumstances. Often, this equates to what they may have received if the marriage had ended in divorce. For all other applicants, it is reasonable financial provision for their daily maintenance.
What happens during a dispute
A dispute goes through various stages. These start with initial discussions between parties, whilst giving thought to settling the dispute out of court. Mediation is a common alternative to traditional litigation, but there are other options available. The court expects parties to consider settling the dispute outside of the court process at all stages, to resolve the dispute as easily, quickly and cost efficiently as possible. This also forms part of the pre-action protocol, as set out in the Civil Procedure Rules. If the court is not satisfied that sufficient effort has been made, it can stay the proceedings and order parties to engage in an alternate dispute resolution process.
While bearing this in mind, parties will exchange legal arguments and, if necessary, proceed to a court hearing. Once judgement is given, the decision is binding. The estate will then be distributed as directed by the court.
Early advice and managing risk
Getting early advice from a solicitor can confirm whether there are any reasonable grounds for making a claim. Determining the merits of any potential claim often requires in depth analysis of the facts and surrounding circumstances.
Why early advice matters
Instructing legal representation makes sure all the necessary steps are taken. They can help avoid missing any crucial deadlines, collect and strengthen evidence and build the legal argument around the basis of a claim. If a claim diverts from the expected route, a legal professional can help navigate through this.
Common mistakes to avoid
There are a number of common mistakes that many people make during the process of a claim.
Pitfalls
- A primary mistake would be waiting too long before taking action. Whether this is due to uncertainty or a reliance on verbal promises made, delaying matters will not help. The strict time limits for making claims against an estate should be front of mind.
- Once the process has started, it would be a mistake to think the formal legal procedures involved are optional. Ignoring or deviating from legal requirements can negatively affect a potentially successful claim, either in attaining a favourable judgement or as costs consequences. The repercussions can affect court decisions and may incur financial penalties.
Do you need a solicitor?
It is extremely valuable to have professional guidance during this process. From the outset we can advise on the merits of a claim and outline steps to take moving forward. We can help navigate you through the dispute, whether this be in settlement negotiations or court proceedings.
Naturally, inheritance disputes can be emotionally volatile. Solicitors offer an objective perspective. We are well equipped to provide stability and support throughout each stage of the process, to help ensure your interests are protected and support you throughout.
