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Claiming your fair share from an estate

Cases involving wills and estate disputes often hit the headlines. These are typically ‘family at war’ stories, where one or more family members were cut out of a will, or at least did not receive their fair share of an estate. For instance, in the Ilott v Mitson (2015) before the Court of Appeal, a daughter was awarded approximately £160,000 from her late mother’s estate after being left out of the will entirely, despite their having been estranged for 26 years.

Claims of this sort are made when family members have not been sufficiently provided for in a will, or have been cut out entirely. The claim is to receive ‘reasonable provision’ from the estate. The court has the power, under the Inheritance (Provision for Family and Dependants) Act 1975, to make changes to a will. It can also order that a claimant should receive a share of the estate if they missed out as a result of intestacy (where there is no will).

Who can make a claim under the 1975 Act? First on the list is the spouse or civil partner of the deceased (or an ex-spouse or civil partner who has not remarried and who did not receive a final financial settlement following the breakdown of the marriage or civil partnership). Also included is someone living with the deceased as their spouse or civil partner – but they must have lived with them during the whole 2-year period immediately before the date of death.

Any child of the deceased may also make a claim. This includes adult children. In the Ilott v Mitson case, the claimant was well into her 40s. It includes illegitimate and adopted children, and someone treated by the deceased as a child of the marriage or civil partnership.

Another potential claimant is someone who was maintained wholly or partly by the deceased immediately before their death.

A number of factors are taken into account by the court when deciding if someone has a valid claim. These include their financial resources and needs, and those of other applicants and the beneficiaries; the obligations and responsibilities of the deceased; the size and nature of the estate; their age; and the duration of the marriage (if applicable). Other factors are the claimant’s contribution to the welfare of the family of the deceased, including any contribution made by looking after the home or caring for the family.

As for what sum or share of the estate a claimant might be awarded, the court will provide them with ‘such reasonable financial provision as is necessary for their maintenance’, to the extent that the estate can provide it. However, a surviving spouse or civil partner of the deceased is entitled to more: such financial provision as is reasonable in all the circumstances, ‘whether or not that provision is required for his or her maintenance’.

To make a claim, a letter of claim should be sent to the executor/administrator of the estate making a claim for reasonable provision from the estate. If no agreement can be reached, ultimately it may be necessary to bring court proceedings, although in practice most claims under are settled before or shortly after the issue of proceedings. Any claim under the 1975 Act must be made within six months of the issue of the grant of probate.

One word of warning is that if a case does go to court it can take a long time be resolved. For instance, in the Ilott v Mitson case the deceased died in 2004, and the case did not get to the appeal court until 11 years later. What’s more, it is not over yet: it is currently being appealed to the Supreme Court.

Michael Feakes

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