If someone has been ‘cut out’ of a Will / the terms of a Will or the intestacy rules means that they have been left with less provision than they expected / need – then they may be able to make a claim against the estate under the above act.
Certain ‘categories’ of people can make a claim against an estate if they feel that insufficient provision has been made for them, which are:
- A spouse or civil partner of the deceased
- A former spouse or civil partner of the deceased who has not remarried or formed a new civil partnership
- Someone who was living with (co-habiting) with the deceased for at least two years as a married couple or civil partners
- A child of the deceased
- Someone who was treated as a child of the deceased (such as an adopted child or step-child)
- Someone who was being financially maintained by the deceased, in any way, immediately before their death
If someone falls into one of the above categories, they will then need to convince the court that they require additional provision from the estate – in other words, that the deceased has not left them with sufficient provision.
For a spouse or civil partner, this additional provision will be what is reasonable “in all the circumstances”. For any other category of claimant, this additional provision will be what is required for their “reasonable maintenance”.
When considering whether someone requires additional provision, there are various ‘factors’ the court will consider, which include:
- the financial resources and financial needs which the claimant has or is likely to have in the foreseeable future;
- the financial resources and financial needs which any other claimant has or is likely to have in the foreseeable future;
- the financial resources and financial needs which any beneficiary has or is likely to have in the foreseeable future;
- any obligations and responsibilities which the deceased had towards any claimant or beneficiary;
- the size and nature of the estate;
- any physical or mental disability of any claimant or beneficiary;
- any other matter, including conduct, which the court may consider relevant.
These types of claims are very ‘fact-specific’ and therefore the most difficult elements of these types of claims is being able to assess:
- The merits of the claim;
- The likely size of any award; and
- If there is an award, what form it should take.
Potential claimants have 6 months from the date a Grant is obtained in order to issue their claim, otherwise they will have to apply to the court for permission to bring their claim ‘out of time’ which is not always granted.
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