Claims against an Estate

Types of Claim

Claims against the Estate under the Inheritance Provision for Family and Dependants Act 1975 or the Inheritance Provision for Family and Dependants NI Order 1979

Improper execution of a Will
Fraud or undue influence towards the deceased

Claims against the Estate under the Inheritance Provision for Family and Dependants Act 1975 or the Inheritance Provision for Family and Dependants NI Order 1979

These two statutes, one of which applies to Northern Ireland and the other to England and Wales are practically identical in wording and are not different to any material degree.  No claim can be made unless the Deceased was domiciled in the jurisdiction in which the claim is being made.

Who can make a claim?

The following persons only can make a claim for financial provision against the estate. 

(a) wife, husband or Civil Partner of the deceased;

(b) a former wife, husband or civil partner of the deceased who has not remarried or entered into a civil partnership;

(ba) any person (not being a person included in sub-paragraph (a) or (b)) who during the whole of the period of two years ending immediately before the date when the deceased died, was living in the same household as the deceased and as the husband, wife or civil partner of the deceased;

(c) a child of the deceased;

(d) any person (not being a child of the deceased) who, in the case of any marriage or civil partnership to which the deceased was at any time a party, was treated by the deceased as a child of the family in relation to that marriage;

(e) any person (not being a person included in sub-paragraphs (a) to (d)) who immediately before the death of the deceased was being maintained, either wholly or partly, by the deceased;

Category (b)(a) above refers to unmarried co-habitees who have a relationship similar to a spouse or civil partner.  They must have been living together with the deceased for at least two years prior to the deceased’s death.

Under category (c), a child is a child of any age.  It does not include stepchildren, but the latter may have a claim under category (d).  An adopted child is treated in law as the child of the Adopter.

Category (e) is for any kind of claimant who had a dependency on the deceased prior to his death.  

Grounds for making a claim

The Ground which all claimants have to satisfy is that the provision of the deceased’s will or intestacy does not make adequate financial provision for the claimant.

In deciding the adequacy of financial provision, the court has to have regard to the guidelines provided by Article 5.  Generally speaking, the court makes a balancing exercise between the financial needs and resources of the claimant and the beneficiaries BUT

(1) when dealing with spouses, former spouses and co-habitees under category (ba) (see section 5.1 above) the court has to also take into account

(a)  the age of the applicant

(b) the length of the marriage (in the case of spouses or former spouses) or (in the case of cohabitees) the period during which the applicant lived as the husband or wife of the deceased and in the same household as the deceased; and

(b) the contribution made by the applicant to the welfare of the family of the deceased, including any contribution made by looking after the home or caring for the family; AND

(2) In the case of spouses (who did not have a decree of judicial separation where the separation was continuing at death) the court has to take into account what s/he would have been entitled to on a divorce.      

Is there anything that can be done to avoid such a claim being made?

The short answer is generally “no”.  A lifetime gift is treated as part of your estate unless that gift was made more than 6 years before your death.  You may, however, wish to consider making some provision in your will which may act as a deterrent (see section 2 above on minimising challenges to your will).

Improper Execution of a Will

If a will has not been properly executed, it is invalid.  The law is set out in the Wills Act 1837 (for England and Wales) and the Wills and Administration (Northern Ireland) Order 1994 (Northern Ireland)

It will be invalid if any one or more of the following formalities have not been complied with

(a) it is signed by the testator (the deceased), or by some other person in his presence and by his direction; and

(b) it appears from the will or is shown that the testator intended by his signature to give effect to the will; and

(c) the signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and

(d) each witness, in the presence of the testator (but not necessarily in the presence of any other witness), either-

(i) attests the testator's signature or the testator's acknowledgment of his signature and signs the will; or

(ii) acknowledges his signature.”

Note the requirement of intention by the deceased.  If it can be shown that the deceased did not intend by his signature to give effect to the will, the will is invalid.

Fraud or Undue Influence towards the Deceased

If the deceased has been defrauded or unduly influenced to the point where the deceased did not intend for his will to have effect, then it will be invalid.  In a sense, this is really claiming that the will was improperly executed.  If, for example, the deceased is told that he is giving his Farm to Peter when in effect, he is giving it to Paul, that would make the will invalid.  Proving that might be a different matter and much could depend on what the witnesses say in the Court.

Undue influence is much more difficult.  If the deceased is put under some sort of pressure to make a will in a particular way, then as long as the deceased knew what he was doing, however reprehensible this might seem, this kind of undue influence is unlikely to make the will invalid.

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Related Topics

Wills