Inheritance Act claims: FAQs for executors and claimants

Inheritance Act claims can raise difficult questions for executors and families. Understanding your responsibilities as an executor and options as a claimant can make a significant difference to how the matter progresses, helping to avoid conflict, delay and unnecessary cost.

What is an Inheritance (Provision for Family and Dependants) Act 1975 claim?

Also known as ‘1975 Act claims’, these allow certain categories of applicants to seek financial provision from a deceased’s estate where no provision or insufficient ‘reasonable financial provision’ has been made under the terms of a will or rules of intestacy.

FAQs for executors

What should I do if I receive a claim from an applicant?

Executors must remain neutral regarding any claims. When legal proceedings are initiated, an executor should be named as a defendant and must acknowledge the claim and respond by providing the court with information about the estate. However, the executor has no role in defending the claim.

Why is it important for an executor to remain neutral?

An executor’s role in these types of claims is to assist the court. Provided they act reasonably, they are entitled to recover their reasonable costs from the estate.

What if I’m also a beneficiary, as well as an executor?

In these circumstances, you must still provide the relevant information to the court and maintain neutrality in your role as executor. If you can’t do so because you wish to defend the claim being made by the applicant or bring a competing claim, you will need to stand down as executor, as you can’t be both a claimant and a defendant.

If, as executor, you incur costs in attempting to defend the claim, you risk those costs not being paid from the estate, as they are likely to be deemed unreasonably incurred.

Can I instruct a firm of solicitors to act for me as both executor and beneficiary?

Yes, and this is often done to ensure costs are reasonable and proportionate. However, costs relating to each aspect of the matter must be kept separate. A beneficiary or defendant isn’t entitled to have their costs paid from the estate, whereas an executor acting reasonably is.

If you’re both executor and beneficiary, you should expect the claimant to raise potential conflicts of interest at an early stage. You should be ready to address this properly or stand down as executor. Alternatively, it may be possible to agree that you remain in the role until a specific point in time, provided this isn’t detrimental to the claim or the estate.

It’s important to be alive to the issues surrounding conflicts of interest from the outset. You should try to avoid a situation where a conflict of interest arises later between your executor and beneficiary roles, as this may leave your solicitor with no option but to cease acting all together.

What should I do if I can’t be neutral?

Remaining neutral as an executor is extremely important. If you feel that, in the circumstances, you’re unable to act impartially, this will give rise to a conflict of interests. At that point, you should consider whether to renounce your executorship role and consent to appointing an independent executor in your place.

What will my role be in any negotiations or mediation?

The executor’s role is to assist both the court and the parties. You can answer questions that help facilitate settlement, but it’s not your job to become embroiled in negotiations.

Executors are often ‘on call’ during mediation and available to sign any settlement agreement, but they don’t usually attend. If a settlement is agreed, or the court makes an order following a final hearing, the executor will be bound to follow its terms.

FAQs for claimants

What can you do if you’re left out of a will?

If you’re left out of a will, there are several options available. Some rely on the deceased’s will being invalid, while others rely on you not having been left what’s known as ‘reasonable financial provision’ or not what you were promised.

Who can bring a claim?

A claim may be brought by:

• A spouse or civil partner of the deceased
• A former spouse or civil partner of the deceased (who hasn’t remarried or entered into another civil partnership and subject to the terms of any divorce settlement)
• A child of the deceased, including adult children
• Any person who was treated by the deceased as a child of the family, most commonly a step-child from a marriage or civil partnership involving the deceased
• A person who lived in the same household as the deceased as ‘husband or wife’ or civil partner for the two years immediately before death (most commonly known as a cohabitee)
• A person who was being maintained, either wholly or partly, by the deceased immediately before death (for example, someone financially dependent on the deceased).

How long do I have to bring a claim?

Court proceedings should be issued within six months of the grant of probate being extracted. Preparing a 1975 Act claim can be time-consuming, so it’s vital to act promptly.

Claims can be brought after the limitation period has expired, but the court’s permission is required and various requirements set out in case law must be satisfied to obtain it. It’s therefore important to act early to avoid the need to apply for permission.

The deceased lived abroad – does it matter?

One requirement of the 1975 Act is that the deceased must have been ‘domiciled’ in England and Wales. Domicile is a legal concept and not simply a question of where someone lived, although that is the starting point. Further advice may be needed if domicile is in doubt.

What is ‘reasonable financial provision’?

For spouses and civil partners, reasonable financial provision isn’t limited to maintenance. It can include provision that allows the surviving spouse to live in the way they were accustomed to, provided the estate can support this.

In spousal claims, the court will often use the ‘deemed divorce’ test as a starting point for spouses and civil partners, to assess what might be ‘reasonable’. This considers what the court might have awarded the applicant had they been seeking financial remedies on divorce.

For other applicants, reasonable financial provision is defined as “such financial provision as it would be reasonable in all the circumstances of the case for the applicant to receive for his maintenance”. It’s case-specific and depends on factors such as the size of the estate, whether there are other applicants and the needs of the named beneficiaries.

How will the court assess what is reasonable?

The court will consider a range of factors to determine whether adequate financial provision has been provided under a will or the intestacy rules, including:

• The applicant’s financial needs and resources, both now and in the foreseeable future
• The financial needs and resources of any other applicant, both now and in the foreseeable future
• The financial needs and resources of any beneficiary of the estate, both now and in the foreseeable future
• The deceased’s obligations and responsibilities towards any applicant or beneficiary of the estate
• The size and nature of the estate
• Any physical or mental disability of any applicant or beneficiary
• Any other conduct.

It’s important to provide your solicitor with as much financial information about your income and outgoings as possible, so they can fully advise you on your claim.

How do I bring a claim?

You should seek legal advice from a solicitor. It’s helpful to provide a copy of the will and the grant of probate. If you don’t have a copy of the grant of probate, an estimate of the estate’s value will be needed.

You will also need to provide details of your financial position, including information about your income and outgoings.

Will I have to attend a trial at court?

Most claims don’t proceed to trial. Only a small percentage of these types of claims reach a final hearing. Only two 1975 Act claims have been considered by the Supreme Court (Ilott v Mitson and Hirachand v Hirachand) and our Katie Alsop acted in both.

These claims are well suited to negotiation and mediation, and many settle without the need to attend a trial or in some cases, even before proceedings are issued.