Claims against the estates of family members and loved ones are on the rise in Wales. At Gamlins Solicitors LLP we deal with cases where the Will of the deceased is being challenged because, for example, he or she was pressurised into making a particular bequest, or did not have the mental capacity to understand the significance of the Will when it was made. Our team of probate and dispute lawyers also handle claims made under The Inheritance Act, 1975, arising when an individual believes they have not received adequate financial provision from the deceased. In this article we look at the factors to consider when bringing such a claim.
Can I Leave My Estate To Anyone?
Welsh people are largely free to leave assets in their Will as they see fit. Unlike some countries, in Europe and elsewhere, the idea of forced heirship (where a certain proportion of an individual’s estate must go to a spouse or other close relative, irrespective of the contents of the Will) doesn’t exist under the laws of England and Wales. However this freedom is limited by The Inheritance Act which gives specific categories of people the right to apply for ‘reasonable financial provision’ from an estate. The people who can make an application like this are:
- The spouse or civil partner of the deceased
- A former spouse or former civil partner of the deceased, but not one who has remarried or entered a further civil partnership
- A person living with the deceased for two years before the death of the deceased as if they were married or on a civil partnership
- A child of the deceased
- Anyone who was treated by the deceased as a child of the family
- Any person who immediately before the death was being financially supported by the deceased
Cases cannot be brought simply because an individual is unhappy with the amount they have inherited. To succeed, a person making an Inheritance Act claim must be able to prove to the court that the way the deceased’s estate is to be distributed (either under a Will or by the laws of intestacy) would mean they would not receive reasonable financial provision.
What Is Reasonable Financial Provision?
The principle behind the Inheritance Act is this: Certain categories of people connected to the deceased should reasonably expect to receive enough financial provision for their maintenance from the estate. For spouses and civil partners making a claim under the Act the courts can award more than is needed purely for maintenance.
The Act lists a range of factors the court can consider when assessing the level of financial provision to award a successful claimant. These include:
- The financial resources and financial needs of the applicant
- The financial resources of anyone else making a similar claim under the Act
- The needs of any beneficiary of the estate of the deceased
- Any obligations and responsibilities of the deceased to other applicants or beneficiaries
- The size of the estate
- Any disability of the applicant
- Any other matter, including the conduct of the applicant or any other person, which the court thinks is relevant
In one of the most widely discussed cases in this area from 2017, Ilott v The Blue Cross the Supreme Court indicated that
‘The level at which maintenance may be provided is clearly flexible and falls to be assessed on the facts of each case,’
So the courts have a certain amount of discretion when deciding in how much financial provision to award. This sometimes makes it difficult to predict with precision how much a successful claimant might get.
When Should I Make An Inheritance Claim?
It is important to note that any inheritance claim should usually begin within six months of the Grant of Probate, although in certain cases this time limit can be extended with permission of the court.
If you are considering bringing a claim you should act quickly and get legal advice. While executors and personal representatives will usually consider the possibility of a claim under the Inheritance Act before distributing estate assets, once the estate is wound up it will be harder from a practical point of view to recover money or property that you may ultimately be due under a financial provision award. Courts will not look favourably on any unnecessary delay in bringing a claim.
Where a claim has genuine merit, we are often able to agree a settlement directly with the executors or personal representatives without the need to issue proceedings or go to court.
Comment
Claims under the Inheritance Act are more common now than ever before. The Guardian reported in 2024 that as many as 10,000 inheritance claims and will contests are started each year. Only a small fraction of these however reach court, suggesting most claims are either settled or are without merit.
Reasons for the increase in cases are varied. They include the rise in property prices which means that even relatively ordinary estates may be worth a considerable amount – and therefore worth claiming against. The rise in second marriages and blended families could also be a factor. There is greater potential for children of a previous marriage to be left out of a parent’s will, giving them the impetus to make a claim.
Despite inheritance claims becoming more common, cases should never be undertaken lightly. Legal costs can be significant and even of you obtain insurance or a solicitor takes your case on a no-win, no-fee basis you may have some exposure to costs if you are unsuccessful.
A specialist inheritance claim solicitor will be able to provide you with a realistic guide to your chances of success. An experienced lawyer will factor into any advice matters such as the size of the estate and whether other claims are being made that could take precedence over yours and reduce the amount available to make reasonable financial provision for you. The category of claimant you fall into also matters. Adult children who are financially self-sufficient in their own right may finds it more difficult to mount a successful claimant than, say a younger child of the deceased who was wholly dependent on them immediately before death.
At Gamlins Solicitors LLP, we act for claimants as well as executors and personal representatives facing an inheritance claim.
Contact Us
Please call us on 01492 860420 or contact the team online to discuss any aspect of inheritance claims. Gamlins Solicitors LLP has a network of offices across North Wales, and we can arrange an in-person appointment at the office that’s most convenient for you or a remote appointment if you prefer.
