Can I bring a claim against an estate?

Cavelle Leigh, an expert solicitor in contesting wills and estates, takes a look at how to bring a claim against an estate before or after probate has been granted.

A previous article, When can I contest a Will?, discussed ways in which a person excluded from a Will can seek to contest its validity. However, there are further options available when it seems on the face of it that the Will itself is valid, or where the deceased died intestate, that is without having made a Will.

If the deceased has a Will, it could be that that it was made many years ago, long before a potential beneficiary came into their life. The deceased may not have consciously chosen to exclude them, but rather did not think to update their Will or otherwise get round to it prior to death.

Further, as divorce rates increase, so too, do second marriages. This has resulted in more and more blended families where one or both parties to a marriage bring children from a previous relationship. When the first spouse dies, they often leave everything to their spouse or partner, incorrectly assuming that when they then die, they will provide for all of the children, not only those that are biologically theirs.

If the deceased has no Will, the rules of intestacy will determine how their estate is distributed. These rules are rigid and may not provide for potential beneficiaries who might expect to inherit under a Will. For example, a person who has been in a committed long-term relationship with the deceased, but crucially is not married to them, will not benefit. The same is true for a stepchild who the deceased may have raised as their own. Whilst they would be automatically excluded under the rules of intestacy, distant relatives such as aunts, uncles and cousins may inherit.

The Inheritance (Provision for Family & Dependants) Act 1975, more simply referred to as The Inheritance Act can provide an answer for those eligible to bring a claim under it.

Those eligible to bring a claim are:

• a spouse or civil partner of the deceased
• a former spouse or civil partner of the deceased
• a child of the deceased
• a person treated as a child of the deceased e.g. a stepchild
• a person maintained by the deceased immediately before their death
• a cohabitee of the deceased provided they lived them in the two years preceding death

If applicants can successfully claim that their financial provision, or lack of financial provision in a Will, or under the rules in intestacy is not reasonable, the court has the power to make an order in their favour.

For most applicants, reasonable financial provision will be deemed as only that which is necessary for their maintenance, enabling them to live at neither a luxurious nor poverty-stricken level.

However, this benchmark is set higher for spouses and civil partners. The court will take into account the standard of living enjoyed by the applicant, and the equivalent financial provision they might have received had the relationship ended in divorce rather than death.

The court has the power to:

• award lump sum or periodical payments,
• transfer property of the deceased,
• bestow on the applicant the right to live in it.

Applications must be made to court within six months of the Grant of Representation. If the deceased has a Will, this will be the Grant of Probate. If the deceased died intestate, this will be the Grant of Letters of Administration. The court does have the power to extend this deadline at their discretion. However, it is preferable to bring an application as soon as possible in any event, as once the relevant Grant of Representation is obtained, the executors can begin distributing the estate.

If you have any concerns about the validity of a will, or the distribution of an estate, the team of specialist contentious probate lawyers at Holmes & Hills can assist and advise.