Private Client and Tax

FAQs - Inheritance Act claims

What is a claim under the Inheritance Act?

The Inheritance (Provision for Family & Dependants) Act 1975, or ‘Inheritance Act’ or ‘1975 Act’ as it is frequently known, allows certain categories of applicant to bring a claim against an estate of a deceased person where ‘reasonable financial provision’ has not been made for them under the terms of the will or on the intestacy of that deceased person.

Who can make a claim?

The following categories of person can make a claim:

  • spouse or civil partner of the deceased;
  • former spouse or civil partner of the deceased (who has not remarried or entered into another civil partnership;
  • a child of the deceased;
  • any person who in relation to a marriage or civil partnership in which the deceased was at the time a party, was treated by the deceased as a child of the family (most commonly a step child);
  • a person who was living in the same household as the deceased, as ‘husband or wife’ or as a civil partner of the deceased for a period of two years ending immediately on the deceased’s death (most commonly known as a cohabitee);
  • any person who immediately before the death of the deceased was being maintained either wholly or partly by the deceased (ie someone financially dependent on the deceased).

Does it matter where the deceased lived?

The deceased must have been domiciled in England and Wales at the date of death.  This does not include Scotland, Northern Ireland, the Republic of Ireland, the Isle of Man or the Channel Islands.

The applicant can live anywhere in the world.

Is there a time limit for bringing a claim?

Yes.  Court proceedings must be issued within six months of the date of the Grant of Probate.  It is important therefore to act quickly and take legal advice quickly if you think you may have a claim.

What if this deadline has passed?

It may still be possible to bring a claim but you will have to ask for the court’s permission to apply out of time.

What is ‘reasonable financial provision’?

For all applicants except for spouses and civil partners, reasonable financial provision is defined 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’.

For spouses and civil partners financial provision is not limited to what is required for maintenance.

How will a court decide?

The court will consider a number of factors in order to decide whether reasonable financial provision has been made under a will or intestacy and, if not, what order it should make for financial provision from an estate.  These factors are known as the ‘section 3 factors’ and include the following:

  • the financial needs and resources of the applicant, both now and in the foreseeable future;
  • the financial needs and resources of any other applicant, both now and in the foreseeable future; 
  • the financial needs and resources of any beneficiary of the estate, both now and in the foreseeable future;
  • any obligations and responsibilities that the deceased had towards any applicant or any beneficiary of the estate;
  • the size and nature of the estate;
  • any physical or mental disability of any applicant or beneficiary;
  • any other conduct.

The court will also consider other factors depending on the category into which the applicant falls.  For example, for a claim by a spouse or civil partner the court will consider the age of the applicant, the duration of the marriage / civil partnership and the contribution made by the applicant to the welfare of the family.

The court will also consider the ‘deemed divorce’ test, ie what the applicant would have received had the marriage ended on divorce rather than on the death of one of the parties.

Can an adult child make a claim?

Yes.  Claims are not limited to minor children.  Adult children can make a claim against a parent’s estate, but such claims are likely to be more difficult to bring than those for minor children.

Will I have to go to court?

Not necessarily.  Subject to the time limit above for issuing proceedings to bring a claim, we aim to resolve matters as much as possible by alternative methods of dispute resolution such as negotiation or mediation.

1975 Act claims are particularly well suited to mediation.

What should I do if I think I have a claim?

You should seek legal advice as soon as possible, particularly in light of the deadline detailed above.


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