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Family and dependants left out of the Will

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Where a person dies a surviving spouse/civil partner, any child of the family and certain cohabitants or other dependants, may apply to court in certain circumstances and request reasonable financial provision to be made for them from the estate, where the deceased's Will or the distribution of his/her estate on intestacy (see 'Dying without a Will') does not make such reasonable financial provision.

When deciding to make a Will, it is important to consider whether a particular person should be excluded who may ultimately have a claim against the estate. Depending on the circumstances, it may be advisable to leave a gift to the particular person concerned. It is good practice for the testator (someone who makes a Will) to leave a letter with the Will explaining why a particular person has been ignored or left a relatively small gift. This will not avoid a claim but it may, in some cases, assist the court in arriving at a decision as to whether a beneficiary is entitled to any provision.

A right to claim

An application must be brought within six months of the date of issue of the grant of representation to the deceased's estate. The court does have discretion to extend this time limit.

Who can claim?

Claims can be made by a surviving spouse/civil partner, a former spouse/civil partner who has not remarried/entered into a new civil partnership, a child of the deceased, any person (other than a child of the deceased) whom the deceased treated as a child of the family in relation to a marriage or civil partnership to which the deceased was a party, any person who lived in the same household as the deceased for the two years up to the death of the deceased as if they were the deceased's husband, wife or civil partner and any person who, immediately before the death of the deceased, was being maintained by the deceased.

Grounds for a claim

The only ground for a claim is that reasonable financial provision has not been made.

In respect of all categories, there are certain common guidelines that must be borne in mind when considering an application to the court for provision. These include, among others, the financial resources and needs of the applicant, the deceased's moral obligations towards the applicant or beneficiary, the size and nature of the estate, the physical or mental disability of any applicant or beneficiary, and anything else which may be relevant.

The court will take into account all the facts as at the date of the hearing and will have regard to the financial resources and needs of the applicant, their earning capacity, and financial obligations and responsibilities.

Surviving spouse/civil partner

In order to qualify as a surviving spouse, the person must be married to the deceased at the date of death. If the surviving spouse was married at the date of death but has since remarried when the application is actually heard, this is a factor that will be taken into account by the court in deciding whether an order should be made. (Equivalent provisions apply in relation to civil partners.)

The court will consider what financial provision would be reasonable in the circumstances for the spouse/civil partner in determining whether the deceased's Will and/or the intestacy (partial or total lack of a valid Will – see 'Dying without a Will') has made reasonable financial provision for the spouse/civil partner.

In addition to the common guidelines, the court will also take into account certain special guidelines. They include the age of the applicant and duration of the marriage/civil partnership, and the contribution made by the applicant to the welfare of the family such as looking after the home. The court will also consider what the applicant might have received if the marriage/civil partnership had ended in divorce/dissolution rather than terminated by death.

Former spouse/civil partner

The category is limited to a former spouse/civil partner who has not remarried/entered into a new civil partnership at any time prior to the hearing.

It is important to examine the divorce (dissolution in the case of a civil partnership) documentation, as very often a clause is included in a settlement agreement or consent order precluding a party to the marriage/civil partnership from bringing a claim in the event of a death. If such an order was made, the court cannot consider an application by the former spouse/civil partner.

The court will consider all the circumstances to establish whether reasonable financial provision should have been made for the applicant. What constitutes reasonable maintenance is difficult to define. It is more than mere subsistence but is unlikely to extend to a level covering everything that a person might want.

In addition to the common guidelines a court will also take into account special guidelines such as the age of the applicant, duration of the former marriage/civil partnership, and the contribution made by the applicant to the welfare of the family including looking after the home.

Where the court accepts that provision should have been made for the former spouse/civil partner, it will usually order periodic payments from the deceased's estate. The periodic payments will cease if the applicant remarries/enters into a new civil partnership.

Application by live-in partner

An application may be made by any person who lived as the husband or wife or civil partner of the deceased and in the same household as the deceased during the whole period of two years immediately before the death. This means that a partner of the deceased may bring a claim irrespective of whether the partner was being maintained by the deceased.

This applies to same-sex couples as well as heterosexual couples.

Although the partner may bring a claim without having to prove maintenance by the deceased, reasonable financial provision may only be awarded to the extent that it is required for the partner's maintenance. The court will consider all the circumstances in respect of each application and can make awards such as periodic payments, a lump sum payment, or transfer of property.

Generally, any award by the court will affect the amount to be paid to other beneficiaries. That amount will be reduced and where one is dealing with a larger estate, it may affect the payment of Inheritance Tax. If there is a payment, for example, to a surviving spouse, the payment is exempt from tax and the overall liability for Inheritance Tax will decrease. However, an award made to a child will decrease the amount payable to the surviving spouse and liability for Inheritance Tax will increase.

Child

Application by a child of the deceased

A child includes illegitimate, adopted and unborn children. There is no age restriction and in itself, marriage will not affect a claim. Once again reasonable financial provision may only be awarded to the extent required for the child's maintenance. An adult child who is quite capable of working and looking after him/herself is unlikely to succeed in a claim.

The common guidelines apply and in addition the court will consider the manner in which the applicant was being, or might expect to be, educated or trained.

Application by a person treated as a child of the family

A stepchild can make an application under this category. The applicant must show that the deceased took on a parental role, which is more than showing affection and kindness.

Adults may apply under this category even if they are over the age of 18 when the deceased married their parent. As with the previous category, the test is whether reasonable financial provision for their maintenance has been made. The court is unlikely to entertain such an application where the person is able bodied and capable of looking after themselves.

Once again, the court considers the common guidelines as well as certain special guidelines. They include:

  • The manner in which the applicant was being, or might expect to be, educated or trained
  • The extent of responsibility assumed by the deceased towards the applicant
  • Whether the deceased knew the child was not their own
  • Whether anyone else is legally responsible for the maintenance of the applicant and if so,
  • Whether the natural parent pays maintenance under an existing court order