‘As I was banished, I was banished Hereford. But as I come, I come for...my claim To my inheritance’.

Shakespeare’s words from Richard II (II, iii, 113-136) sum up perhaps what so many people feel when they learn they have not been properly provided for by a loved one in their Will – a sense of betrayal, desperation and determination to achieve a fair deal. Fortunately, nowadays, where a person has not been properly provided for in a Will (where a Will fails to make ‘reasonable financial provision’ for them), they can bring a claim under the Inheritance (Provision for Family and Dependants) Act 1975 to secure something for themselves.

There are two categories of people who can bring a claim under the Act: the Deceased’s surviving spouse or civil partner; and the Deceased’s children (be they adult or minor, natural, adopted, step or akin to step), surviving unmarried partners who cohabited with the Deceased for at least two years up to and including the point of death, and people who were in receipt of financial support from the Deceased at the point of the death.

Surviving spouses and civil partners are entitled to claim as much of the Deceased’s estate as the Court may deem reasonable in all the circumstances of the case (whether or not they need the money); the Court will have regard to what the spouse might have been awarded on a divorce and the factors laid down in s.3 of the Act when deciding how much is appropriate in each instance.

By contrast, everyone else is limited to claiming such portion of the estate as is necessary for their ‘maintenance’. In practice, that means that the claimant must show that they are in financial need (and the need can be of an income or capital nature, and can range from the need to have a roof over one’s head to needing a few hundred pounds to buy some means of getting to work or to replace worn out white goods that otherwise would be unaffordable); that the provision made for them by the Will (or the law governing intestacy) is insufficient to meet their financial needs; and that there is (in claims brought by everyone in the second category save for minor children) a clinching (usually moral) reason as to why the claimant’s needs should be met by the estate rather than the claimant having to economise.

If the above criteria are met, the Court will then turn to weighing up what it should award to ensure that the claimant’s needs are met and that he/she can live reasonably comfortably according to his/her usual standard of living.

In weighing up what award it should make, the Court must take into account the factors laid down in s.3 of the Act, including the needs of those who already benefit by the Will, the vulnerabilities of other parties or their dependents, and everyone’s behaviour; and, once it has done so, judgment is given and the estate divided in accordance with the Court’s Order (or not, as the case may be).

For assistance in bringing or defending a claim under the Inheritance (Provision for Family and Dependants) Act 1975, contact Ralph Wheeler on ralph.wheeler@porterdodson.co.uk or click below for our dedicated help line.