The Inheritance (Provision For Family and Dependants) Act 1975
There are four questions asked surrounding popular myths about the Inheritance
(Provision for Family and Dependants) Act 1975
What will the Court consider?
The Court will consider three questions:
Does the Will or intestacy make reasonable financial provision for the applicant?
If not, should the Court intervene so as to award further provision from the estate?
If so, what type of provision is appropriate?
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 one of our specialist contested probate solicitors who will be able to guide you through the process.
Take legal advice early
If you think that you might have a claim, taking early advice and ensuring you know when a grant issues in the relevant estate, are both absolutely crucial. A claimant must issue a claim within 6 months of the date of a grant of probate or grant of letters of administration. In exceptional circumstances, the court may permit claims brought after this time, however, there is no guarantee that late claims will be allowed to proceed, and the claimant must produce persuasive evidence to explain their delay and demonstrate the strength of their claim to have the best chance of securing leave out of time.
Be ready to provide information about your finances
A claimant will be expected at a very early stage to provide full disclosure as to their own financial needs and resources. This is necessary so that the estate and the court has a clear picture of what you have and what you need now and in the foreseeable future. It is not uncommon for those who feel that they have been treated unfairly by a loved one in their will and advance a claim for provision, to regard this disclosure requirement as intrusive, and to feel as if it is they who are somehow on trial. However, the reality is that the burden of showing that reasonable provision has not been made falls on the applicant. Without this information, the estate – and the court – will not be able to form a view about what reasonable provision might be if it is accepted that the will failed in this respect. Those defending a claim, who are often the beneficiaries of the estate, are not required to provide disclosure of their financial needs and resources, although that which they are left by virtue of the will or intestacy rules will be known once a grant of probate is extracted and the executor provides information about the estate as they must in their neutral capacity in any claim. If a Defendant chooses not to disclose any information about their finances, the inference is likely to be drawn that they are well provided for and cannot mount a needs-based defence.
What can the Court do?
The Court’s powers are very wide and it has numerous options available when making an order. The Court may award that a specific lump sum be paid to the applicant, either for a particular purchase or for general use. Alternatively the Court can order that small amounts be paid regularly to the applicant, in the form of periodic payments for their maintenance. If the parties are arguing over a specific property, the Court may order that it be sold and the proceeds split, or that it be transferred to one of the parties outright. The Court may also declare that any property be held on trust for the applicant and/or the other beneficiaries.
McKeag & Co have been established on Tyneside for over 100 years and during this time have been successful in obtaining millions of pounds compensation for people who have suffered abuse.
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