The Inheritance Act 1975 allows certain family members and dependants to ask the court for financial provision from an estate. If you are making a Will, it helps to know who could bring an Inheritance Act claim, how the court decides, and what you can do to reduce the risk. This guide explains the rules in England and Wales from the point of view of the person making the Will.
What is the Inheritance Act 1975?
The full name is the Inheritance (Provision for Family and Dependants) Act 1975. It lets certain people apply to the court if a Will, or the intestacy rules, do not make “reasonable financial provision” for them. It applies where the person who died was domiciled in England and Wales.
The Act works as a safety net. You still have freedom to choose who inherits. However, the court can step in where someone with a close connection has been left without reasonable provision.
Who can make a claim under the Inheritance Act 1975?
The following people can apply:
- a spouse or civil partner
- a former spouse or civil partner who has not remarried or formed a new civil partnership
- a child, including an adult child
- a person treated as a child of the family, such as a stepchild
- a cohabitee who lived with the deceased as a couple for the whole of the two years immediately before the death
- anyone who was being maintained by the deceased immediately before the death
For example, imagine an unmarried couple who have lived together for many years. If one dies and their Will leaves everything to their siblings, the surviving partner may be able to claim as a cohabitee. Unmarried partners inherit nothing under the intestacy rules, so the Act is often their only route to provision without a Will in their favour.
Time limits
A claim must normally be made within six months of the grant of representation (the grant of probate or letters of administration). The court can allow a late claim, but it does not have to. So your executors will usually know within a few months of the grant whether a claim is likely.
What does “reasonable financial provision” mean?
For most claimants, it means what is reasonable for their maintenance, in other words their day-to-day living needs. However, for a spouse or civil partner the test is wider and is not limited to maintenance.
For example, an adult child with a disability that prevents them from working may have a stronger claim than an adult child who is financially secure. In contrast, a healthy adult child with a good income may find it hard to show they need provision.
What the court considers
When deciding a claim, the court looks at a range of factors, including:
- the financial needs and resources of the claimant and the beneficiaries, now and in the future
- any obligations the deceased had towards the claimant or the beneficiaries
- the size and nature of the estate
- any physical or mental disability of the claimant or a beneficiary
- any other relevant matter, including conduct
For a spouse or civil partner, the court also considers what they might have received on a divorce. For a child, it can take education and training needs into account.
What orders can the court make?
If a claim succeeds, the court can order regular payments, a lump sum, or the transfer of particular property. It can also treat the deceased’s share of jointly owned property as part of the “net estate” in some cases. This means that leaving assets outside your Will does not always put them beyond reach.
How to reduce the risk of a claim under the Inheritance Act 1975
No Will can rule out a claim completely. Even so, several steps can make a claim less likely, or easier for your executors to deal with:
- Think about who could claim. List anyone in the categories above, especially people who depend on you financially.
- Explain your reasons. A letter of wishes or signed statement setting out why you have made your choices is not binding, but the court can take it into account.
- Keep records of lifetime gifts. If you have already helped someone substantially, write it down.
- Consider making some provision. A gift to someone who depended on you may reduce the chance of a larger claim.
- Keep your Will up to date. Review it after a new relationship, separation, or a change in someone’s needs.
Claims can be costly and stressful for everyone, and they can divide families. Therefore, clear drafting and open conversations during your lifetime are often worthwhile.
If you think you have a claim
A.D.E. Wills writes Wills. We do not act in inheritance disputes or court claims. If you believe you have been left without reasonable provision, or you are an executor facing a claim, you should take advice from a solicitor promptly because of the time limit. We can refer you to an appropriate professional.
Key terms
- Domicile: broadly, the country a person treats as their permanent home.
- Grant of representation: the document that gives executors or administrators authority to deal with an estate.
- Intestacy rules: the rules that decide who inherits when there is no valid Will.
- Net estate: the assets available to meet a claim, after debts and expenses.
Talk to us about your Will
If you are making a Will and are concerned that someone may bring an Inheritance Act claim, Edward can talk through your options and help you set out your wishes clearly. Call 01865 507174 or email info@adewills.co.uk for a free initial chat, or read more about our Will writing service. You can read the Act itself on legislation.gov.uk.
