Can intestacy rules be challenged?

Rachel Shaw, specialist contested probate solicitor, discusses the result of a loved one passing away intestate, and how the rules of intestacy can be challenged.

When someone dies without leaving a Will, the Rules of Intestacy (“the Rules”) will apply to the administration of the deceased’s estate. These Rules can be found in Parts 3 and 4 of The Administration of Estates Act 1925.

What are the Intestacy Rules?

In simple terms, if the deceased’s estate is worth £250,000 or less, the surviving spouse of the deceased will inherit the whole of the estate. If the estate is in excess of £250,000, the surviving spouse will also inherit half of the amount which is in excess of £250,000 and the remainder will then be divided between any surviving children. If there is no surviving spouse, the children inherit the whole estate. If there are no children then it passes to the deceased’s surviving parents, then it passes to the deceased’s siblings, and so forth.

Unfortunately, this can sometimes cause tensions amongst family members if they believe the Rules do not truly reflect what the deceased would have wanted. For example, if a couple have been cohabiting for 15 years but never married and suddenly one of them dies, under the Rules, the survivor will not receive a penny. Similarly, if someone who has recently remarried, after having children from a previous marriage, suddenly dies without leaving a Will and their estate is worth less than £250,000, those children will not inherit anything. This can sometimes seem unfair.

Contesting Intestacy: how can the Intestacy Rules be ‘challenged’?

Unfortunately, the Rules of Intestacy cannot be ‘challenged’ per se; however, under the Inheritance (Provision for Family and Dependants) Act 1975 (“the Act”), certain specified persons can make an application to the Court for an Order to redistribute the estate on the ground that the distribution of the estate effected by the Rules does not make reasonable financial provision for them. Those entitled to make an application are:

1. The spouse or civil partner of the deceased;
2. A former spouse or civil partner of the deceased, provided they have not entered into a subsequent marriage or civil partnership.
3. A person who lived with the deceased in the same household as if they were married to or in a civil partnership with the deceased for a period of two years ending immediately before the death (this will only apply if the deceased died on or after 1 January 1996);
4. A child of the deceased;
5. Any person treated by the deceased as a child of the family and the deceased at the time stood in the role of a parent; and
6. Any person who immediately before the death was being maintained, either wholly or partly.

In deciding whether to grant the Order, the Court will not carry out a subjective assessment as the Court is not concerned about what is morally right, but rather the Court will carry out a two-staged objective assessment.

Stage one: Has the deceased's estate made reasonable financial provision for the applicant by the standard applicable to that applicant?

The category into which an applicant falls is crucial to the answer to this question. For spouses and civil partners of the deceased, or those treated as the same, the provision required need not be for the applicant’s maintenance but is based on what it is reasonable for the claimant to receive, whether or not it is for that person's maintenance. For all other applicants, the provision is what would be reasonable in all the circumstances of the case for the applicant to receive for their maintenance.  The courts have defined maintenance and the applicable standard under it by reference to what it would be reasonable for that claimant to live on, at neither a luxurious, nor poverty-stricken level. 

Stage two: What financial provision should be made?

This stage will only take effect if the answer to stage one was no.

As with stage one, the Court will look at the category in which an applicant falls when determining this question. The Court will also consider various other factors, including but not limited to:

1. the financial resources and financial needs which the applicant has or is likely to have in the foreseeable future;
2. the financial resources and financial needs which any other applicant has or is likely to have in the foreseeable future;
3. the financial resources and financial needs which any beneficiary of the estate of the deceased has or is likely to have in the foreseeable future;
4. any obligations and responsibilities which the deceased had towards any applicant for an order under the said section 2 or towards any beneficiary of the estate of the deceased;
5. the size and nature of the net estate of the deceased;
6. any physical or mental disability of any applicant for an order under the said section 2 or any beneficiary of the estate of the deceased;
7. any other matter, including the conduct of the applicant or any other person, which in the circumstances of the case the court may consider relevant.

When to make a claim under the Act

If someone close to you has died and you believe the Rules do not make reasonable financial provision for you, get in touch with one of our specialist contentious probate solicitors and we will be able to advise you on whether you have a potential claim under the Act.

A claim will need to be issued within six months from the date of the Letters of Administration. It is important to get in touch as soon as possible because once six months have passed, the applicant will need the Court’s permission to make such a claim which is an extra hurdle for the applicant.