Inheritance Claims FAQ

 

“Say not you know another entirely till you have divided an inheritance with him”

These are the words of eighteenth century Swiss poet Johann Lavater, and sadly they remain as true today as when he wrote them.

WHEN IS IT TIME TO CALL IN SPECIALIST SOLICITORS?

Nothing divides a family quite like an inheritance claim and recourse to solicitors is likely to increase family tensions.

If an inheritance claim is brewing, we would advise you to make every effort to resolve it amicably before involving lawyers or solicitors.

Inheritance claims can lead to irreparable rifts within families and the cost of an inheritance claim needs to be measured in human as well as financial terms.

If despite all your best efforts you find that an inheritance claim cannot be avoided then don’t delay in seeking professional legal advice from solicitors specialising in inheritance claims. This advice is applicable to people bringing a claim and to those who are defending one, though claimants need to be particularly aware of the six month rule.

WHAT IS THE INHERITANCE (PROVISION FOR FAMILY AND DEPENDANTS) ACT 1975?

Most inheritance claims are brought under the Inheritance (Provision for Family and Dependants) Act 1975, often known as the Inheritance Act or simply the 1975 Act.

1975 Inheritance Act claims can be brought in cases where a valid Will has been made, or where no Will exists and the intestacy rules apply.

The 1975 Inheritance Act empowers the courts to redistribute the deceased’s estate where the Will or intestacy rules fail to make “reasonable financial provision” for the applicant.

WHO CAN BRING A CLAIM UNDER THE 1975 INHERITANCE ACT?

It is open to surviving wives, husbands, co-habitees, children (including step children and children of the family), civil partners or anyone being maintained by the deceased to bring an inheritance claim under the 1975 Inheritance Act.

In the last few years solicitors have seen a substantial increase in inheritance claims. This seems to be due to three main factors:-

1. The increase in property prices; which has resulted in the value of estates soaring.

2. The prevalence of second or even third families; which leads to increased scope for inheritance dispute.

3. The public’s increased awareness of the legal position concerning inheritance claims.

WHAT IS “REASONABLE FINANCIAL PROVISION” IN THE CONTEXT OF THE 1975 INHERITANCE ACT?

People often ask us about “Reasonable Financial Provision”. This is the legal term used in the 1975 Inheritance Act and its definition varies from claim to claim. The big difference is between inheritance claims brought by surviving spouses and inheritance claims brought by other categories of claimant.

If the Inheritance Act claim is being brought by a spouse of the deceased then “Reasonable Financial Provision” will be such financial provision as would be reasonable for a husband or wife to receive, whether or not that provision is required for their maintenance.

For all other people making an Inheritance Act claim, “Reasonable Financial Provision” means such financial provision as would be reasonable for their maintenance.

WHO NEEDS A SOLICITOR OR LAWYER?

If an inheritance claim arises under the 1975 Inheritance Act it is usual for the beneficiaries, the executors and the person bringing the claim to all be separately represented by their own solicitor.

Solicitors have to be careful not to allow situations to develop where a conflict of interest arises. Executors must take a neutral approach to inheritance claims and if solicitors are already involved in winding up the estate then the beneficiaries really need to appoint separate lawyers.

WHO PAYS THE SOLICITORS’ BILL WHEN AN INHERITANCE CLAIM IS WON OR LOST?

It is important for anyone embarking upon litigation, and inheritance claims in particular, to consider how much it will cost and how it will be paid.

A 1975 Inheritance Act claim is subject to the same costs regime that applies to all adversarial litigation. Ultimately it is for the court to decide which party should pay the costs, and although it is common for the costs to be recovered out of the estate this can by no means be guaranteed. Anyone bringing an inheritance claim under the 1975 Act needs to consider what would happen if their claim failed and the estate did not meet their costs.

Funding options include no win, no fee and Legal Aid (public funding) as well as the more conventional private client basis.

FURTHER QUESTIONS ABOUT INHERITANCE CLAIMS

We hope this brief FAQ has been helpful. However, if you require further guidance on any potential inheritance claim or wish to know more about your prospects of bringing a successful claim under the Inheritance (Provision for Family and Dependants) Act then please contact us for free initial legal help.