All You Need To Know About The Inheritance (Provision For Family And Dependants) Act 1975

• Published date: 11 March 2021
• Subject Matter: Family and Matrimonial, Divorce, Wills/ Intestacy/ Estate Planning
• Law Firm: Birketts
• Author: Jenny Howe

With increasing numbers of second marriages and blended families as well as a growing awareness of inheritance issues, testators are well'advised to think carefully about balancing their wishes to provide for a second spouse and their children of a prior relationship.

Recent years have seen a rise in claims for provision from estates, suggesting that this balance is a very difficult one to strike. It is more important than ever to consider the purpose of the Act, who can benefit from it, the factors a court will consider and the type of awards available if successful.

The purpose of The Inheritance (Provision for Family and Dependants) Act 1975

The law in the UK starts from the long established principle that an individual is entitled to dispose of their estate as they see fit. Unlike in some other countries, there is no law of forced heirship which dictates how an estate should be inherited; usually among close family members. However, the UK courts have a limited power to make orders which interfere with the effect of a will (or the effect of the intestacy rules where there is no will) where there is judged to be a failure to make reasonable financial provision for a defined class of people connected to the deceased. The Act offers recourse to such applicants but only if they can demonstrate that the provision actually made (which might be no provision at all) is not reasonable. The power is however limited to ordering only such provision as is reasonably necessary for the maintenance of the applicant. It has been said that this standard means the applicant should be able to live 'at neither a luxurious nor poverty stricken level'. If the applicant is a surviving spouse or civil partner of the deceased, they can claim at a higher maintenance standard which is whatever is necessary for their maintenance in all of the circumstances. This is significant because with spouses and civil partners, the court can take into account the standard and style of living and reasonable expectations of the applicant, including what they might have expected to get if the relationship had ended with divorce instead of death, and that may well exceed what they need for their day to day maintenance.

Take legal advice early

If you think that you might have a claim, taking early advice and ensuring you know when a grant issues in the relevant estate, are both absolutely crucial. A claimant must issue a claim within 6 months of the date of a grant of probate or grant of letters...