Do you think that you have a claim against the estate of someone who has died? If you believe that you should have been included in their will, or received more under their will than you did, then you may be entitled to make a dependency claim.
Robert Johnson, Solicitor, Director and Head of Dispute Resolution, specialising in Wills and Estate Litigation at Malcolm C Foy and Co Solicitors in Doncaster and Rotherham, explains how:
“Where the deceased died without a valid will, the intestacy rules govern the automatic manner in which their married, or civil partner, and other close relatives, inherit their estate. If you are not provided for under the intestacy rules, or you consider that the amount you will receive is not sufficient, you might be able to bring a claim against the estate to ensure you receive a share or a greater proportion of it.”
You can bring a claim against the estate for financial provision if you come within one of the specified categories of applicant that are set out in the Inheritance (Provision for Family and Dependents) Act 1975, and these are:
- the spouse or civil partner of the deceased;
- a former spouse or former civil partner of the deceased, but not one who has subsequently married or formed a new civil partnership;
- a person who had, during the whole of the period of two years ending immediately before the deceased’s death, lived in the same household as if he or she were the husband, wife or civil partner of the deceased;
- a child of the deceased;
- any person who was not a child of the deceased, but was treated as a child of the family by the deceased, within a marriage or civil partnership; or
- any person who immediately before the death of the deceased was being maintained, either wholly or partly, by the deceased.
If you believe that you fall into the last category and consider that you were being maintained by the deceased, either wholly or partly, you must demonstrate that the deceased was making a substantial contribution towards your reasonable needs.
This last category is the least clear cut and consequently has led to many court cases. The deceased’s contribution to your needs must have been “substantial”, and it must outweigh, even if only slightly, money or equivalent, received from you. A common sense approach is required as illustrated by the following two cases:
The first, is a case in 2002, where a mother had cared for her severely disabled child and had therefore benefited from the financial provision made for the child by the Court of Protection albeit that the benefit was indirect. The mother was entitled to claim that she was being maintained by her child as at the date of the child’s death for the purposes of a claim against the child’s estate.
The second case, in 2009, is one where Mary Spencer Watson, a famous sculptress, had an intimate relationship with Margot Baynes. They lived together in Mary’s house until Mary died, bringing up Margot’s two children; Hetty and a brother, as their own children.
When Mary died, she left the house to a charity and the residue of her estate to Margot.
Hetty Baynes tried to bring a claim on the grounds that she had been maintained by Mary prior to her death, but the Court of Appeal upheld the principle that Mary had the right to decide who would receive her assets when she died.
If a case goes to court and you are able to bring a claim, the court will look at whether the deceased’s estate made reasonable financial provision for you. Then if it did not, the court will go on to consider what provision should be made.
If your claim is successful you could receive maintenance or a capital sum, depending on the size of the estate and the existence of any other beneficiaries. A spouse will receive a sum that is reasonable in the circumstances, which may be a greater sum than that solely representing maintenance.
For all other classes of applicant, the court will order reasonable financial provision in the circumstances of the case. Calculating your entitlement can be complicated and negotiations must be conducted sensitively, since the personal representatives who are managing the estate may include members of the deceased’s family who may themselves be a beneficiary of the estate.
The time limit on bringing such a claim is very strict. The claim must be brought within six months of the grant of probate, which authorises the administration of the estate. Early legal advice is recommended as you will not have much time to consider your application following the death of the deceased.
To make a dependency claim or for advice on any other wills and probate matter, contact Robert Johnson, Solicitor, Director and Head of Dispute Resolution, specialising in Wills and Estate Litigation at Malcolm C Foy and Co Solicitors in Doncaster and Rotherham.
Robert Johnson - firstname.lastname@example.org
Malcolm C Foy & Co
51 Hallgate, Doncaster, DN1 3PB or 2 Upper Millgate, Rotherham S60 1PF
The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice. The law may have changed since this article was published. Readers should not act on the basis of the information included and should take appropriate professional advice upon their own particular circumstances. 11.03.15