The Inheritance (Provision for Family and Dependants) Act 1975 has been the subject of much discussion through the years. Katie Alsop of Wright Hassall LLP dispels some of the myths surrounding the Act.

What is the Inheritance (Provision for Family and Dependants) Act 1975?

In summary, the Inheritance (Provision for Family and Dependants) Act 1975 makes provision for a court to alter the distribution of the estate of a deceased person to any spouse, former spouse, child, child of the family or dependant of that person in cases where the deceased person's will or the rules of intestacy fail to make ‘reasonable financial provision’.

Much has been made in the press about claims made pursuant to the Inheritance Act, with many asking why make a will at all if someone can challenge it and the will maker’s wishers are then disregarded? However, it is key to remember that on a technicality, the will is not being challenged – it is not part of the case that the will is invalid – and that those people who can make a claim against the estate pursuant to the Act are limited by the statue.

Furthermore, the extent of the claim which the court can consider is also restricted. To that end, claims may only be for reasonable financial provision or, in some limited circumstances, maintenance to allow the claimant to live in the lifestyle to which they were accustomed prior to the deceased passing away.

With that in mind, here are four questions often asked surrounding popular myths about the Inheritance (Provision for Family and Dependants) Act 1975:

1. Can anyone make a claim under the Inheritance (Provision for Family and Dependants) Act 1975?

It is not correct to say that anyone can make a claim. They must fall within the scope of persons entitled to make a claim, as set out in the Act. In short, the Act provides for those who either a) are related to the deceased person by reference to the Act, or b) were financially dependant on the deceased subject to the terms prescribed in the Act. 

Those persons who are entitled to make a claim under the Act due to their relationship with the deceased are set out in the Act, including spouses, children and those people treated as a child subject to meeting specific criteria. Notably, grandchildren are not included, albeit that is not to say a grandchild would not fall within a different category of entitled claimants. In practice, of those persons who are entitled to bring a claim, we most often see adult children who have not been named in their parent’s will wanting to secure some element of provision for themselves.

2. Will any claim made under the Inheritance (Provision for Family and Dependants) Act 1975 disregard the beneficiaries chosen by the will-maker?

The court takes into consideration various factors when considering a claim, including the financial needs of the beneficiaries named in the deceased’s will, both currently and in the future. Those beneficiaries will be made parties to the claim and as such, they will be entitled to place evidence before the court in both witness statement and document form. In doing so, the court can carry out a ‘balancing exercise’ of the needs of beneficiaries and the claim which is being made against the background of the extent of the deceased’s estate.

In circumstances where one of the named beneficiaries is a charity, the opportunity should be taken to explain to the court the needs of the charity, eg how much per year it needs to provide its services and whether the deceased was a known donor and as a result the monies due from the estate have already been factored into projects or forecasted spending.

3. What does ‘reasonable financial provision’ mean in the Inheritance (Provision for Family and Dependants) Act 1975?

The extent of ‘reasonable financial provision’ has been the subject of much debate over the years. The Supreme Court in Ilott (Respondent) v The Blue Cross and others (Appellants) [2017] UKSC 17 explored the issue and it is accepted that there is a balance to be struck with obtaining enough provision for day to day maintenance while not providing what, to the independant bystander, could be seen as a luxury. For example, new carpets and white goods are likely to fall within the first category, while exotic holidays will almost certainly fall in the latter.

There is, however, always the value of the estate and any liabilities to be considered. There will be a finite amount from which all liabilities, claims and beneficiaries must be paid and because of that the court will be careful to strike a balance.

4. Will the costs of making a claim under the Inheritance (Provision for Family and Dependants) Act 1975 be paid from the deceased’s estate?

One of the most common misconceptions, of both potential claimants and sometimes even practitioners, is that the costs of bringing a claim under the Act will be paid from the estate. This is not the case. Costs follow the usual rule in that costs follow the event and those costs are at the discretion of the court.

In practice, this means that the starting position is that the losing party will have to pay the winning party’s costs. The court may then exercise its discretion and order that costs are paid from the estate. But it should be said that any claimant would be unwise to commence a claim assuming that this would be the outcome. If a settlement is agreed between the parties, the treatment of the parties’ costs will also be subject to agreement.

How do I make a claim under the Inheritance (Provision for Family and Dependants) Act 1975?

There are various things to consider before making a claim under the Act, including:

• Make sure that you are an eligible person as set out in the Act before embarking on a claim under the Act.
• Be sure to know the extent of the provision you might be able to secure.
• Claims under the Act rely on a witness statement being issued with a claim form and it is essential to make that as comprehensive as possible. This can take some time to prepare and therefore issuing a claim should be well in advance of any potential deadline.
• Be ready to set out all your income and outgoings and provide evidence of those.

Claims under the Act utilise a court procedure which is only used in limited circumstances. There are also specific Civil Procedure Rules which apply to claims under the Act and because of that, to put you in the best possible position, you may wish to consult a specialist contentious probate solicitor who will be able to guide you through the process.

About the author

Katie Alsop is a Senior Associate at Wright Hassall LLP. Katie specialises in contested wills, disputed estates and the removal and substitution of executors.

See also

Everything you need to know about fixing mistakes in wills

What to do if a new will is found after an estate has been divided

Disputing whether a will has been validly executed

Find out more

Inheritance (Provision for Family and Dependants) Act 1975 (Legislation)

Wills Act 1837 (Legislation)

Image: Getty Images

Publication date: 17 December 2019