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The Inheritance (provision for family and dependants) Act 1975

It is possible to challenge a Will or in the absence of a Will, an Intestacy where a dependant person (family or otherwise) has been excluded or not received sufficient inheritance from the Will or where under the intestacy rules a person would not normally be due to inherit.

Normally claimants would be spouses, former spouses, co-habitees, children, step children or anyone who was being `maintained` by the deceased immediately before his or her death.

The claim would normally have to be made within a six-month period against the personal representatives and beneficiaries of the estate.

Claims under the Act would have regard to the provision the applicant might reasonably expect to receive. There are a number of factors to be taken into account in arriving at what would be a reasonable provision. Factors such as the extent to which the applicant was dependent on the deceased, the financial resources and needs of the applicant, the size of the estate and the length of time of the dependency are considered. Also to be considered would be whether the maintenance was necessary to discharge the costs of daily living, the social standing of the applicant and the standard of living the deceased had encouraged the applicant to have.

There are additional criteria for spouses. Here the Court has regard to the provision an applicant might reasonably have expected to receive if the marriage had ended in divorce rather than death. The guide in these circumstances would be an equal division. Whilst there is no legal presumption the Court would only depart from the guideline of equality if there were good reason to do so. Claims are rarely made against the estate of a deceased ex spouse as divorce settlements generally include a bar on the 1975 Act in divorce settlements.

An informal partner (co-habitee) has no claim on the estate of the deceased under the Intestacy rules, but can apply for provision under the 1975 Act if they had been living together continuously for at least two years before the death.

Children of the deceased can apply for provision irrespective of age, although a claim based on the grounds of poverty alone would be insufficient. The Court would however take account of the manner in which the child was or could have expected to be educated or trained. It is unlikely that an adult child, in employment with earning capacity for the foreseeable future would succeed in a claim

Successful claims may result in a Court order for periodic payments for a period of time, a lump sum payment, the transfer or settlement of property or a variation of a marriage settlement.

The 1975 Act cannot be excluded by a Will and therefore where a testator is concerned that a claim may be made against his or her estate, it is worth considering making a written statement of intention in the Will or in a separate document attached to the Will setting out in a calm and reasonable way, why no or an unequal provision has been made for the potential applicant. Evidence of the intentions and reasons behind such a decision would then provide valuable evidence to the Court in the event of a dispute.

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