Making a Claim Against a Deceased’s Estate

If an individual does not receive an inheritance on the death of a loved one, they may be able to ask the court for financial provision out of the estate. In some cases, a beneficiary believes they have not received enough out of the estate, in which case they can also make a claim.

The right to bring a claim against a deceased’s estate is set out in the Inheritance (Provision for Family and Dependants) Act 1975, and is limited to ‘dependants’.

Who can make a claim under the Inheritance (Provision for Family and Dependants) Act 1975?

The Inheritance (Provision for Family and Dependants) Act 1975 allows certain categories of persons to make claims for reasonable financial provision out of an estate.  These categories are:

  • The surviving spouse or civil partner
  • A former spouse who has not remarried
  • A cohabitee who had been living with the deceased for at least two years before their death
  • A child of the deceased
  • Any person who, though not a child of the deceased, was treated as a child of the family by the deceased (eg. a stepchild)
  • A person who immediately before the deceased’s death was being maintained wholly or partly by the deceased.

A child of the family includes illegitimate and adopted children, and children conceived but not yet born at the time of death. For the purposes of the 1975 Act, a stepchild is not a child of the deceased.

Furthermore, a ‘child’ of the deceased includes adult children. The courts are increasingly allowing claims by adult children against a parent’s estate, even where there has been little or no contact for some years. However, such cases are fact specific.

If you fall within any of these categories, you are entitled to apply for reasonable financial provision on the grounds that none (or not enough) has been provided. This may be in relation to the deceased’s will, for example, you are a child of the deceased but you have been disinherited; or the deceased left no will and you are not entitled to anything under the intestacy rules.

What are the requirements when making a claim?

When applying for reasonable financial provision, you must also satisfy the following:

  • The deceased must have died domiciled in England and Wales, and
  • A claim under the Act must be made within six months of the Grant of Probate or Letters of Administration

If you are claiming as a cohabitee of the deceased, you will have to show you lived in the same household during the whole period of two years immediately prior to the deceased’s death.  However, in some cases the court will consider an application if the applicant and the deceased lived separately for medical reasons (eg. the deceased was a hospital inpatient for some weeks until the date of death).

When assessing your claim, the court will consider various factors including your age, financial needs, the deceased’s moral obligations towards you, the size of the deceased’s estate, and your conduct towards the deceased. However, if you were financially independent of the deceased at the time of their death, you may not succeed in your claim.

Read here for more information on how the court assesses a claim for reasonable financial provision. If you are considering a claim, take legal advice from a specialist wills and probate solicitor as early as possible.