The personal representative should always wait for six months from the date of the grant of representation being issued by the registry before distributing any assets to beneficiaries because of the possibility of claims being made against the estate under the Inheritance (Provision for Family and Dependants) Act 1975 as amended.
A court has discretion to extend the period of six months within which the claims can be made but the onus of persuading the court to extend the period is upon the claimant and the court will only do so in exceptional circumstances and on rare occasions. In deciding whether or not to extend the period a court will take into account such factors as:
The reasons fro the delay and whether the applicant has been dilatory
Whether the estate had been distributed before the personal representative was notified of the claim
Whether the applicant can show that he has an arguable case
Whether a refusal to extend the time would leave the claimant without a remedy (for example, against his solicitor for negligence
Whether negotiations to settle the claim had commenced within the six months period.
If a claim is made immediate assistance should be sought from a solicitor.
In broad terms the Act permits claims to a reasonable share of the estate after death, even if the will leaves the claimant nothing to too little. Claims can be made by:
A wife, husband or civil partner
A former wife, former husband or former registered civil partner who has not remarried or entered into a new civil partnership
Children (adopted children claim against the estates of their adoptive parents not the estates of their birth parents)
Any person who was treated as a child of any marriage or civil partnership to which the deceased has been a party
Anyone who considers that he or she was maintained by the deceased to a material extent immediately before the death. The applicant must show that the deceased had assumed responsibility for the applicant to a substantial extent.
Payment of the claimant’s debts does not constitute maintenance unless the payment of those debts enabled the claimant to receive future income that he could not receive if the debts remained unpaid. The gift of a house several years ago is not sufficient (even if the applicant is still living in it) because the maintenance must take place immediately before death and once the gift was made it became the applicant’s property and he could do whatever he wished with it.
A successful spouse or registered civil partner will be awarded what is reasonable whether or not it is required for the claimant’s maintenance; any other claimant will only receive maintenance. Maintenance need not be for any minimum period or financial; it can be maintenance provided in kind, for example by providing free food and lodgings.
What is reasonable depends upon all the circumstances of the case. The High Court put it rather well when it quoted with approval of a Canadian court which ruled that reasonable maintenance was enough to enable the applicant (a child of the deceased who was an able bodied adult) to live ‘neither luxuriously, nor miserably but decently and comfortably’. Matters which are likely to be considered include the size of the estate, the behaviour of the parties and of the deceased, the length of time that the relationship existed, and the resources and needs (including those arising from mental or physical disabilities) of the parties. In assessing a claimant’s financial situation a court can hold it against a claimant that he has in the past invested in speculative investments or lived beyond his means.
A partner who was cohabiting with the deceased in the same household as if they were man and wife or civil partners for two years immediately before the death can claim without having to prove that he or she was maintained by the deceased. In the case of Lindrop v. Argus in 2009, a couple were held to be living in the same household, in the particular circumstance of the case, after moving in with the deceased even though the applicant had retained her old postal address as her main postal address.
The High Court or a County Court exercising matrimonial jurisdiction can bar a spouse or civil partner from making a claim under the Act on or after successful proceedings for annulment of marriage, divorce, judicial separation or dissolution of civil partnership.
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