The quick, but not very clear answer is…..yes and no! Let us explain.
Anyone can contest a will if they feel they have not been made “reasonable provision” within it. You would need to bring a claim against the estate, and we shall set out how this works and a few examples.
There are two ways that a person can make a claim against a deceased’s estate, the first being a claim under the Inheritance (Provision for Family and Dependants) Act 1975.
In England and Wales, we have Testamentary Freedom. This means we are free to leave our estate to anyone we choose, and exclude individuals we do not want to benefit. Many countries (Scotland for example) have laws which mean that some or all of an individual’s estate must pass to certain family members, despite what the individual’s Will says. The 1975 Act does not give a person an automatic right to a share of the estate, instead it gives an excluded person a right to challenge it.
The conditions are:
- The deceased must have died based in England or Wales.
- The claim must be made within six months of the Grant of Probate being taken out (there can be some exceptions to this).
- The person bringing the claim must fall into one of six categories.
- The deceased’s Will must have failed to have made reasonable financial provision for the person bringing the claim. This condition is ‘reasonable’ provision, not ‘any’ provision. Some provision may have been left for a beneficiary, however it may not be deemed as reasonable.
The six categories of applicant are;
Spouse or Civil Partner
For a spouse or civil partner to make a claim against an estate, they must show that the marriage or civil partnership existed at the time of death, and they had not divorced or dissolved the civil partnership. If they were separated but still married, or in a civil partnership, they would still be entitled to make a claim.
Spouses that are older applicants and have therefore had a longer marriage would have a stronger claim than someone who was young and only married to their spouse for a year before their death. In addition to this, a spouse that has spent the duration of the marriage looking after the deceased’s home would have a stronger claim than if living apart or were separated.
Former Spouse or Civil Partner
For a former spouse or civil partner to make a claim they must not have remarried or entered into a new civil partnership. These claims are rare due to there usually being an order included in the divorce settlements which prevents the bringing of a claim.
Cohabitant
For a cohabitant to make a claim against an estate, they must have been living as though they were the deceased’s spouse or civil partner for at least 2 years before the testator’s death and must have been living in the same household. The two-year period must have been unbroken (i.e. no breaks in the relationship rather than something like an extended hospital stay) and the relationship must be ‘openly acknowledged’.
This can be quite difficult to prove and courts will consider whether a reasonable person would think that the couple were living together.Courts can be flexible with the 2-year period;
In the case of Kaur v Dhaliwal and another [2014] EWHC 1991. In this case, the couple met 4 years before the deceased’s death and got engaged shortly after. They lived together for 3 months but there was roughly a year gap where it was uncertain where both parties lived. They then lived together for one year and 49 weeks before the deceased’s death. The judge in this case concluded that despite the disruptions in their living arrangements, a settled relationship had continued throughout the statutory period up to death so as to allow provision from the estate.
The court will look at how they were splitting the finances of the home, the length of relationship and if they were being maintained.
Child of the Deceased
This category includes both legitimate and illegitimate children, adopted children and also those children ‘en ventre sa mere’ (conceived before death). There is no age limit on claims made by children, although claims by able bodied adult children are generally less likely to be successful. There are some exceptions to this;
In the recent case of Ilott v Mitson (2011), an estranged adult child (Ilott) made a successful claim against her mother’s estate. She had been estranged from her mother for 26 years at her death. Her mother’s estate was valued just under half a million pounds. Ilott challenged the estate as it had been left to 3 animal charities. She was successful and was initially awarded £50,000 due to her being in a poor financial position. Ilott appealed via the Court of Appeal in 2015 and was awarded £143,000 in order to allow her to buy her property along with an additional £20,000. However the charities appealed to the Supreme Court and the amount that was awarded to Ilott was reduced back down to £50,000.
Person treated as a Child of the Family
This extends the definition of the family to cover where someone has treated a child as their own. This category is open to both minors and adults.
Dependent
This category covers those who were dependent on the deceased, but do not fall into any of the other categories.
The burden of proof for proving the dependency is on the applicant making the claim.
The 1975 Act states that “a person is to be treated as being maintained by the deceased (either wholly or partly, as the case may be) only if the deceased was making a substantial contribution in money or money’s worth towards the reasonable needs of that person.”
If a person is excluding another person in their Will, and they believe that they may make a claim, it is important they write a Letter of Wishes detaling why they have been excluded. This letter would not stop a person from being able to claim or having a successful claim altogether, however it can add weight to the argument that the person is not entitled to any of the estate as it is in their own words.
It is important to add that a person receiving no provision in the Will does not mean that their claim will be successful. A court may rule that the reasonable amount of financial provision is in fact nothing at all.
At GP Norgate we always cover the Inheritance (Provision for Family and Dependants) Act 1975 in our Estate Planning Consultations so please get in touch if you would like to book one.