Have You Been Left Out Of A Will When You Shouldn't Have Been?

There is a general principle under English law that everyone has "freedom of testamentary capacity". In other words, upon death, a person can leave their property, assets and other wealth to whoever they want. However, there are exceptions to the rule.

The Inheritance (Provision for Family and Dependants) Act 1975 was introduced to help those who had been wrongly left out of a Will, those who had not been left as much as they need, or those who had not inherited as a result of intestacy.

The 1975 Act only applies to someone who died domiciled in England or Wales. The legislation also has strict criteria regarding the category of people ("applicants") who can apply to the Court for provision.

Possible applicants

People who are entitled to claim under the 1975 Act include:

1. The spouse or civil partner of the deceased
2. A former spouse or former civil partner of the deceased who has not remarried or formed a new civil partnership
3. A person living in the same household, as the husband or wife of the deceased, for the whole of the two years before the deceased's death
4. A person living in the same household, as the civil partner of the deceased, for the whole of the two years before the deceased's death
5. A child of the deceased
6. Any person treated as a child of the family by the deceased in relation to a marriage or civil partnership
7. Any person being maintained by the deceased immediately before their death

Making a claim

To make a successful claim against the estate of the deceased, an applicant must satisfy the Court that reasonable financial provision has not been made for them.

This might sound simple, but it can often be difficult to quantify what "reasonable financial provision" means, as the needs of each applicant depend on how they are related to the deceased and their own personal circumstances.

The Court's decision

The Court weighs up a range of factors to decide whether reasonable provision has been made for an applicant and if not, what further award should be made. Some of the common considerations are:

1. An applicant's future financial needs and resources (including earning capacity)
2. The future financial needs and resources (including earning capacity) of any other applicant or beneficiary
3. The deceased's obligations and responsibilities towards any applicant or beneficiary
4. The size and nature of the deceased's net estate
5. The physical and/or mental condition of the applicant or any beneficiary
6. Any other matter the Court considers relevant (including the conduct of any party)

Spouse

If the applicant is the spouse (or former spouse) of the deceased, the Court, in addition to the above, will consider the length of the marriage, the applicant's age and the contributions made to the family.

Cohabitees

The Act permits a person who has cohabited, as the husband and wife of the deceased for the whole of two years, to apply under this legislation. The right applies to both opposite sex and same sex partners of the deceased.

This is perhaps one of the most frequently used heads of claims where couples living together in long-term relationships are caught out when their loved one passed away without leaving a Will, or a pre-existing Will leaves everything to the children. Blaser Mills has a high success rate of providing these types of applicants with awards to allow themselves to be rehoused and live a comfortable life.

Children

If the applicant is the child of the deceased, the Court will look at the extent to which the deceased was responsible for their maintenance.

An independent, adult child is less likely to be successful than an adult child with physical or mental difficulties who was looked after by a deceased. However, there have been recent cases where awards to adult children have been made on moral grounds.

When is a Will 'unreasonable'?

When an applicant contests a Will, the Court will examine the deceased's reasons for attributing their wealth and assets in the way set out in their Will. If they have given express reasons for excluding a person, or limiting their provision, this will be considered in the context of all the circumstances of the case. The Court may well conclude that the argument given by the deceased is 'unreasonable'.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.