Inheritance Claims vs Probate Claims

“Inheritance claim” is the commonly used name to describe special claims that are made against a deceased’s estate under the statutory framework created by the Inheritance (Provision for Family and Dependants) Act 1975 which operates in England and Wales, but not Scotland.

An Inheritance Claim should not be confused with a “Probate Claim”, which usually relates to the administration of an estate or a claim concerning a disputed Will.

Inheritance claims can only be made by a person who:

(1) is regarded as a qualifying applicant (ie: included in the categories of applicants in Section 1 (1) (a) to (e) of the Act) and

(2) is able to show from their financial circumstances (and that of any other applicant) when taking account of the value of the deceased’s net estate that the Will ( or the statutory Intestacy Rules if no Will had been made) does not provide “reasonable financial provision” for applicant.

There are many situations which can arise whereby a spouse or civil partner, a child or close relative or even an employee or a person who was being financially maintained by the deceased immediately before the death may be able to apply to the court and seek an inheritance award requiring the estate to make a financial provision to them if the deceased’s Will (or the rules regarding Intestacy) has failed to provide this to them.

One example might be where the Will simply fails to provide any gift to a dependant or it might be an old Will made many years before the death and although some financial provision included in it failed to take account of the subsequent changes in the financial circumstances of either the deceased or that of his/her dependants.

Parliament has recognised that whilst the categories of applicants under the 1975 Act includes spouses and even former spouses it had not included civil or unmarried partners and this was corrected by amendment to the Act (introduced by Section 2 of the Law Reform (Succession) Act 1995).  As a result, a partner of the deceased who had co-habited with him/her for 2 or more years prior to death will qualify.

The time limit for making an Inheritance claim is 6 months from the date of issue of a Grant of Probate (authorising the executors of the Will) or the issue of a Grant of Letters of Administration (for intestacy cases).  A late claim will be possible only with permission of the court and this is rarely given.

Before issuing the claim it is vital that all important evidence is collated and prepared in the form of a witness statement to be filed at the court together with the application before the expiration of the limitation period.  Care is needed in the drafting of the statement and the supporting evidence. 

Taylor Fordyce has experience in dealing with all types of claims including inheritance and contentious probate claims.