If you, or your children, were living with, married to, in a civil partnership with, and/or financially dependent on someone who has died, you may be able to make an Inheritance Act claim against his/her estate.
This could be where a person has died without making a Will (which is known as dying ‘intestate’) or has made a Will but has not made suitable provision. A child whose parent has died may also have an inheritance claim, even if they were not financially dependent on that parent at the time of their death.
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In England and Wales, the court can make such financial provision as it judges reasonable having considered the criteria set out in the Inheritance (Provision for Family and Dependants) Act 1975 and having regard to all the circumstances of the case. If the claim is successful, this may result in cash payments being made from the estate or an order that property is transferred to the applicant including for their housing needs.
Claims need to be brought within a strict time limit. It is therefore essential to seek expert advice as soon as it becomes clear that insufficient financial provision has been made.
This is also important as in some cases interim cash can be awarded to meet immediate financial needs.
If you are:
We can provide you with robust advice as to whether the claim is likely to succeed and a strategy that protects you and that you are comfortable with in a dispute that may well involve close family members.
Our approach includes using alternatives to contested court proceedings including mediation, where appropriate, and not losing sight of the emotional impact the involvement of lawyers can have at such a difficult time.
Inheritance Act proceedings can cover several areas of the law and we can draw on the expertise of our family, private client, corporate, employment and civil litigation teams to produce the best possible outcome for you.
Scotland has specific legislation governing inheritance. There are three principal ways in which one person can inherit from another in Scotland.
If there is a Will in place, that will usually cover arrangements in respect of the estate and how it should be distributed. However, legal rights can operate in both testate and intestate situations and are indefeasible rights that a spouse and children or civil partner of the deceased are entitled to against the 'moveable' part of the estate whether there is a will in place or not.
In Scotland property is either 'moveable property' (for example money, shares, belongings, and anything else that can be moved around) or 'heritable property' (which is fixed property such as land or a house). Legal rights do not apply to heritable property and only apply as a claim for money on the moveable parts of the estate.
Legal rights for a spouse or civil partner are called 'relict’s rights' and for a child, they are called 'bairn’s rights' or 'legitim'. There is no need to go to court to assert these rights as they apply in every case unless the person entitled to them agrees to waive their entitlement.
Book my free consultationIf there is no Will in place or the Will has not been drafted well enough to cover all of the deceased's assets (known as partial intestacy) then the net estate after debts are paid will be distributed in a certain way.
Firstly, a spouse or civil partner has additional rights known as 'prior rights' to a certain proportion of the net intestate estate (after funeral costs and debts have been paid off) which takes priority over any other claims on an intestate estate. This is an entitlement to a certain cash proportion of the value of any dwelling house, plenishings and money in the intestate estate and is taken before legal rights then will apply.
If there is no Will and there is still some estate left after prior and legal rights have been taken then the Succession (Scotland) Act 1964 provides a list of who is entitled to the residue of the estate with an order of entitlement for various relatives like children, parents, siblings, and so on.
Scotland has specific legislation providing certain rights to protect cohabitants in the event of death.
If one of the cohabitants dies without a Will in place, the other cohabitant will have a right to make a claim for a share of their intestate estate but that claim must be made within six months of the date of death.
If there is a Will in place, currently there is no provision for the cohabitant to be able to make any claim. The Scottish Government are looking at whether to change the law to provide for claims even if there is a Will in place.
Cohabitation claims on death can be quite significant in value. In certain cases, a cohabitant might receive as much as a spouse would receive on death and other family members might not receive as much inheritance as they expected.
Given that there is a strict six month time limit to make an inheritance claim, it is important that you do not delay taking advice.
About David:
David has specialist knowledge in contentious trust and estate disputes involving the administration of estates, will validity claims, proprietary estoppel, Inheritance Act claims and also disputes involving trustees, executors and beneficiaries.These are the categories of potential claimants:
An Inheritance Act claim must be made within six months of the date that a full grant of probate was granted. It may be possible to apply to court for an extension to this time limit, but action should be taken as soon as possible as delay can prevent a claim.
If the courts are satisfied that you have not been sufficiently provided for, then they have the discretion to provide for ‘reasonable financial provision’. This has a very wide definition as being “such financial provision as it would be reasonable in all the circumstances of the case for the applicant to receive for his maintenance”.
A claim by a spouse or civil partner may receive a higher award as any award is not limited to maintenance. The court can sometimes consider what a spouse or civil partner could have expected in a divorce, though this will not set a minimum or maximum amount. This is often called the “deemed divorce” test.
For all claims, the court will look at what is needed for daily living expenses, in addition to considering available provision for housing. It can be very complex to value these claims and detailed information on the applicant's financial resources and expenditure is essential, as well as historic information about the standard of living they enjoyed with the person who has died.
If the courts are satisfied that you have not been sufficiently provided for, then they have the discretion to provide for ‘reasonable financial provision’. This has a very wide definition as being “such financial provision as it would be reasonable in all the circumstances of the case for the applicant to receive for his maintenance”.
A claim by a spouse or civil partner may receive a higher award as any award is not limited to maintenance. The court can sometimes consider what a spouse or civil partner could have expected in a divorce, though this will not set a minimum or maximum amount. This is often called the “deemed divorce” test.
For all claims, the court will look at what is needed for daily living expenses, in addition to considering available provision for housing. It can be very complex to value these claims and detailed information on the applicant's financial resources and expenditure is essential, as well as historic information about the standard of living they enjoyed with the person who has died.
Each claim is considered by the court on an individual case-by-case basis, but there are certain factors that are important when judging all such cases. These include:
The claimant must show the court that the provision they have been left (if any at all) is insufficient to meet their reasonable financial needs.
The first step in making a claim is to seek legal advice as soon as possible.
Depending on individual circumstances, the next stage would be to collate evidence and financial information in order to detail the claim in writing, with supporting documentation, and to identify what financial support is needed. The Claim would usually be brought in the County Court or the High Court.
Sometimes, there may be a need for urgent financial support and if this cannot be agreed, then an interim application can be made to the court.
Generally, there will be early attempts for written or face-to-face negotiations, often using formal mediation. If this is not successful and a claim does reach court, the costs can quickly mount for all parties. It is always essential to keep a careful eye on the time limit for bringing a claim, which often requires court proceedings to be issued to protect the claimant's position within six months of the grant of probate being issued, even if negotiations are ongoing at this point.
The executors are expected to maintain neutrality in any Inheritance Act claims. They should not ‘actively defend’ any claims brought; this is the role of the main beneficiaries. As long as the executor remains impartial, they will generally be able to recover any costs related to the matter out of the estate.
However, if they take a partisan approach or unnecessarily incur costs in defending the claim, they could be personally liable for their own costs, and even those of the claimant.
In some circumstances, the executor is also a beneficiary to the estate. If the executor defends the claim, then the costs incurred in defending a claim will generally not be paid out of the estate but it is possible for the same person to remain neutral as an executor but defend the claim as a beneficiary of the estate
An unmarried partner in England and Wales has no automatic right to their partner's estate if they die without making a Will. It is therefore essential that unmarried couples make a Will.
There are however certain circumstances in which you could make a claim against your partner's estate if you can show that you are being maintained by them prior to their death or you have lived with your partner for two years prior to their death. This provision also extends to same-sex partners who are not in a civil partnership.
In addition to this, there are special guidelines for the court to consider such as your age, the length of your cohabitation and the contributions that you have made to the welfare of the family. We can advise you of your rights if your partner predeceases you and the appropriate course of action to achieve the best possible outcome for you.
The court will take into account as part of the evidence the reasons why someone was excluded from a Will but ultimately the court does have the power to make an order that would be contrary to the deceased’s wishes.
The court's decision will turn on the extent of the applicant’s financial needs, the extent, if any, to which they were dependent on the deceased , combined with conduct and the deceased’s reasons for excluding the applicant from the Will.
It is therefore essential to obtain early specialist legal advice to understand the strength of any potential claim
If your partner died without a will (intestate) in Scotland, you can make a claim as a cohabitant for a share of the estate in terms of the Family Law (Scotland) Act 2006. You may be entitled to as much as a spouse or civil partner would have received under normal inheritance laws. However, you must make such a claim within six months of the date of death otherwise you will be time-barred from doing so.
This will depend largely on what assets were left in the estate of your father and the type of assets. Your stepmother will have certain prior rights for a claim on the dwelling house that they lived in, the furnishings of the house and any money he held.
There are, however, strict limits on how much that can be and thereafter you as a child will have legal and succession rights to a certain proportion of the estate. It is important you seek legal advice to establish your proper entitlement.
If there is any movable estate, i.e. any assets other than heritable property, you will be entitled to your "legal rights".
This means you are entitled to a cash sum representing a certain proportion of the moveable estate. The proportion will depend on whether your mother had any living spouse or civil partner, and also on how many siblings you have.
The will cannot defeat this entitlement. Whoever administers the estate will need to contact you to provide you with details of your entitlement under the legal rights provisions.
Adult children are eligible to make a claim under the Inheritance Act in England and Wales, but not all claims succeed. The court will only make an award if it is satisfied that the particular circumstances of the case justify it. Early advice should be taken.
