We are seeing an increasing number of claims against estates, by family members and dependants who have not been reasonably provided for.
These types of claims do not challenge the legal validity of the deceased’s Will, rather they challenge the reasonableness of its provisions. Here we address some of the common questions we receive and give an outline of the Act’s purpose, how it works and how to prepare for a claim.
What is the purpose of the Act and who is it for?
The purpose of the Act is to empower the Court to make financial provision out of a deceased person’s estate for a spouse/civil partner, former spouse/former civil partner, child, child of the family or dependant in appropriate circumstances.
How does the Act work?
Stepping away from the legalities for a moment, in essence the Court will take account of the assets available for distribution and those who are entitled to the same i.e. by virtue of the Deceased’s last Will or the intestacy provisions.
In considering a claim by an applicant the Court will scrutinise that person’s financial position undertaking a thorough review of their assets, liabilities, financial needs and obligations. It will also take account of any physical or mental disability which may impact on the applicant’s finances and ability to maintain themselves, as well as other relevant matters relating to the particular circumstances of the case.
If provision is to be made to an applicant from the estate, then the impact of doing so will need to be balanced against the resources available for distribution and the competing needs of the other beneficiaries.
The reality is that the Court is required to perform a balancing exercise where it deems that an applicant does have a valid claim against the estate. This is why it is crucial to ensure that your claim is properly prepared and includes the required financial information and supporting evidence for the Court’s attention.
I am thinking about making a claim under the Act, what do I need to do?
The first thing you need to do is to check whether a Grant of Probate has issued. This is because a claim under the Act must issue within six months of the Grant of Probate being extracted. You can apply for the Court’s permission to bring a claim out of time, but there is no guarantee that this will succeed, and it is always better to protect your position by issuing a claim in time. Additionally, the Grant of Probate will give an indication of the net value of the estate.
You will need to see a copy of the Will in the first instance (or if there isn’t one to consider your position under the rules of intestacy) to ascertain what, if any provision has been made for you.
If you are considering bringing a claim then you should pull together evidence of your finances. As an example we would ask you to provide:
- Evidence of any properties that you own with information of any outstanding mortgages;
- At least one year’s worth of bank statements and payslips;
- Details of any investments or life assurance policies;
- Information in respect of any pensions you receive;
- A record of any benefits that you receive;
- Details of any debts owed to you;
- Details of any existing financial commitments.
We will provide you with a form to complete to assist you in budgeting your annual financial requirements e.g. mortgage/rental payments, utilities, groceries, pet bills etc.
What initial steps would be taken prior to issuing a claim?
We will consider with you the background and circumstances of your case. This will include reviewing your financial position and discussing with you the possible competing needs of the other beneficiaries. This will help us assess whether your claim is likely to be successful.
It is also important to consider at the outset how much you are seeking and to understand what a Court may consider to be reasonable financial provision taking into account your circumstances.
Once we have formed a view as to the prospects of success and considered what you are trying to achieve, the next step is to prepare a detailed letter of claim. It is important to act reasonably throughout the matter, bearing in mind that we are guided by the Civil Procedure Rules Pre Action Protocol and the Association of Contentious Trust and Probate Specialists Code of Conduct.
Once a formal response has been received to the letter of claim, the court will expect you (with our help) to have tried to resolve matters amicably through negotiation or mediation. It is worth noting that most cases are settled amicably with only a 2 – 3% of those cases issued at Court reaching trial. If the 6 month period in which a claim must be issued is close to expiry it may be necessary to issue a protective claim whilst negotiations are ongoing.
What happens if it is not possible to resolve matters amicably?
If we cannot achieve an amicable resolution then a claim would be issued in accordance with Part 8 of the Civil Procedure Rules.
Part 8 claims are used where the Court’s decision is required on a question which is unlikely to involve a substantial dispute of fact. The idea being that this is a more streamlined approach to certain kinds of claim.
The Part 8 claim would be supported by a detailed witness statement setting out the circumstances of the case and focusing on your finances using the financial information provided from you at the outset. Any relevant testamentary documents and the Grant of Probate would also be attached to the claim.
The papers will be sent to the Court who will process them and issue a claim number. Thereafter the papers will be served on your opponent (the defendant) who then has a 21 day period in which to respond to the claim.
It should be noted that written evidence filed by a defendant who is a personal representative must state to the best of that person’s ability:
- Full details of the value of the deceased’s net estate;
- The person or classes of persons beneficially interested in the estate;
- The names (unless they are parties to the claim) and addresses of all living beneficiaries;
- The value of their interest in the estate so far as they are known;
- Whether any living beneficiary is a child or a person who lacks capacity;
- Any facts which might affect the exercise of the Court’s powers under the Act.
Once the pleadings phase has been concluded i.e. both sides have set out their formal positions, the Court will list an administrative hearing to give directions for the preparation of the case to trial. This will include matters such as disclosure of documentation, instructing experts, preparation of witness statements and potentially additional time for alternative dispute resolution. As mentioned above there is ample opportunity throughout the proceedings to seek to resolve matters amicably. When both parties have formally set out their legal positions it can be a good time to explore settlement through mediation.
In the small number of cases where it is not possible to resolve matters, the case will ultimately be listed for trial and all evidence will be presented to the Court, usually by barristers appointed for the respective parties.
The Court will carefully consider the evidence presented to it and decide whether it is appropriate to order financial provision for you from the estate. If the Court decides that provision should be made to you it has wide ranging powers which could include:
- Periodical payments;
- A lump sum;
- Transfer of property to you;
- A life interest in property.
If the Court makes an order under the Act, the original grant (together with a sealed copy of the order) must be sent to the Principal Registry of the Family Division for a memorandum of the order to be endorsed on or permanently annexed to the grant.
Last words
Hopefully this guide gives you a flavour of the purpose of the Act and an overview of the process of pursuing a claim. The onus is on you to prove that you have a genuine financial need arising from inadequate financial provision made by the deceased. The Act is not intended to be a mechanism for relatives to challenge the deceased’s wishes simply because they feel it is unfair, even if it is a large estate with ‘more than enough to go around’. As lawyers who specialise in inheritance disputes, we know the emotional and financial pressures under which those who seek our advice are labouring and we will work with you to try and resolve disputes as quickly and sensibly as possible, taking into account the commercial realities.
If you have any further questions or are considering bringing a claim under the Act then please contact Anna Sutcliffe, a Partner in our Contentious Probate Team, who will be happy to speak with you.
The information provided in this article is provided for general information purposes only, and does not provide definitive advice. It does not amount to legal or other professional advice and so you should not rely on any information contained here as if it were such advice.
Wright Hassall does not accept any responsibility for any loss which may arise from reliance on any information published here. Definitive advice can only be given with full knowledge of all relevant facts. If you need such advice please contact a member of our professional staff.
The information published across our Knowledge Base is correct at the time of going to press.
