Contentious Probate IPFDA 1975

In our December 2019 article we discussed the possibilities of beneficiaries bringing a claim against an invalid Will. Although this is possible, it can be incredibly difficult for a person to prove that a Will is invalid.

Therefore, to save time and costs, a potential beneficiary can choose to accept the final Will of the deceased, and instead make a claim against it for either a lack of any provision, or alternatively, the provision not being deemed reasonable for their situation.

The law changed in 1975 which allowed persons of a certain category in the deceased’s life to bring a claim for provision against an Estate, regardless of whether they received an inheritance from that person or not. This is known as the Inheritance (Provision for Family & Dependants) Act 1975 or the IPFDA for short.

Although many believed that this would open up a floodgate for any people who wanted to make a claim, to do so, the Act is quite prescriptive as to the categories of those who may apply; and equally the time limits to do so.

The first question that you must ask, regardless of whether you think you are eligible to bring a claim, is are you in the timeframe to do so?

Time limits to bring a statutory claim

The IPFDA currently states that a person must bring a claim within 6 months of the date of the Grant of Probate of the Estate that they are looking to claim against. Although applications for permission to bring a claim can be made outside the time limit, the Courts take a very stern approach to allowing out-of-date applications unless it is clearly in the interests of justice to do so. The example of the case of Bhusate – v – Patel in 2019 is an example of a successful claim being made some 25 years and 9 months after the statutory deadline and is extraordinarily rare!

So, am I entitled to bring a claim?

Not only are the Courts prescriptive on time limits, they are equally very prescriptive on the types of people that can bring a claim. The restrictive categories are as follows:

  • Spouses or civil partners;
  • Ex-spouses or ex-civil partners – so long as they have not remarried;
  • Cohabitees of over two years who were living as husband or wife with the deceased;
  • Children of the deceased (including adult children);
  • A person who was treated as a child of the deceased;
  • Any other person who was being maintained in full or part by the deceased at the date of their death.

Although some of the above categories are self-explanatory, others require further explanation:-

  • Cohabitees of over two years who were living as husband and wife with the deceased;

Being a “roommate” or a tenant in the property of the deceased is not enough to satisfy this category. Equally, any application that you wish to make for financial provision needs to be “reasonable for [your] maintenance”. The Courts must also take into consideration the age of the applicant, the length of the cohabitation, and the contribution of the deceased to the welfare of the family unit.

If you are considering bringing a claim as a cohabitee, it is recommended to collate evidence of your relationship together over a period of time to highlight clearly to the Court, evidence of your relationship with the deceased.

  • Any other person who was being maintained in full or part by the deceased at the date of their death.

Arguments have been raised that this category within the Act opens up more opportunities for people who may have been receiving money from the deceased during their lifetime, to continue that provision after the deceased’s death.

In order to prevent financial hardship, the Act has allowed such people to make a claim in anticipation of receiving funds to assist them moving on in life.

It should be noted however that to be a successful claimant under this category the deceased must have been making a substantial contribution in money or money’s worth towards the reasonable needs of that person. Arguably therefore receiving £100.00 a month to assist with the university life of an 18-year-old grandchild may not satisfy this requirement. On the other hand, a person paying the rent of a on a cousin’s property whilst that cousin is out of work, and that cousin then not receiving anything under the person’s Will, would likely qualify as showing that they were receiving a substantial contribution, and therefore being maintained.

Awards: How does the Court decide?

The Courts when considering any financial award to a claimant will consider the following factors:-

  • The financial needs of the claimant i.e. are they themselves working and already have sufficient income?
  • The resources of the claimant i.e. do they already have sufficient savings and likely other inheritance prospects?
  • The size of the estate. The lower the Estate value, the less likely that the Courts will be willing to make any award away from it
  • The financial needs and resources of other beneficiaries under the Estate – The Courts are very hesitant to completely overrule the wishes of the deceased. If allowing a financial award to a claimant will significantly reduce the inheritance of others who are themselves in financial need, the Courts will be less obliged to award.

Awards: What could I receive?

The Act gives the Courts several options in terms of making a provision from the deceased’s Estate for a claimant. These include:

  • An Order for periodical payments to the claimant
  • An Order for a lump sum to the claimant
  • An Order for the transfer of a property to the claimant or as time limited interest in a property
  • And the Act does in some ways give scope to allow any Order as the Court sees fit

It does therefore go to show that each application under the IPFDA 1975 is extremely unique and requires in depth knowledge and application in order to be successful.

Our team at Barrett & Co are specialists within areas of Contentious Probate, and if you therefore feel aggrieved to have been left out of a Will, or have not received what you believe is owed or was promised, we can assist you in reviewing a possible IPFDA claim. Our solicitors offer an initial £95.00 fixed fee meeting where you can discuss your potential claim, and we can provide you with an overview of your likely chances of success.

Please contact the Contentious Probate Department on 0118 958 9711.

Next Month…

If you have concerns regarding an Executor or Administrator of an Estate, you do have the option to block those persons from taking out a Grant of Probate, therefore preventing their ability to administer an Estate. This is the process known as “Taking out a Caveat”

 

Further reading

Contentious Probate

Inheritance Act claims and Contested Probate

Nick qualifies into the Contentious Probate team

Wills

Wills & Probate Testimonials

Trusts Over Properties in Wills

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