Can I leave my estate to anyone I wish?
It used to be a principle of UK law that we were free to leave our estates on our deaths to anyone we chose.
However, legislation passed in 1975 changed things dramatically. Now an individual can claim that a deceased’s will, or failure to make a Will meaning the deceased died intestate, does not leave them with reasonable financial provision.
Who can claim under the Inheritance Act?
Not everyone can make a claim. You must be an ‘entitled’ applicant under the Inheritance Act.
There are six categories of ‘entitled’ claimant against the deceased’s estate. These are:
- the surviving spouse or civil partner of the deceased;
- a former spouse or civil partner of the deceased (who has not subsequently married or entered into a civil partnership);
- a person with whom the deceased had lived for the two years prior to death as spouse or civil partner;
- a child of the deceased;
- any person who was treated by the deceased as a child of the family;
- any other person who immediately before the death was being maintained wholly or partly by the deceased (i.e. a dependant).
What will the court consider?
The court will consider three questions when presented with a claim:
- Does the Will or intestacy provision make reasonable financial provision for the applicant?
- If not, should the court intervene and award further provision from the estate?
- If so, what type of provision is appropriate?
The question of ‘reasonable financial provision’ depends on various factors. For most, the provision from the deceased’s estate will need to be what’s necessary for their maintenance.
For a spouse or civil partner, the standard of ‘reasonable financial provision’ is based on all circumstances and what is ‘reasonable’ for them to receive. There is no requirement that their provision is solely for maintenance.
What is reasonable in all the circumstances will depend on many different things, but the Inheritance Act specifies certain factors courts must consider:
- Current and future financial resources and needs of the applicant and beneficiaries of the estate;
- Any obligations and responsibilities which the deceased had towards the applicant and beneficiaries;
- The size and nature of the estate;
- Any physical or mental disability of the applicant or any beneficiary
- Any other matter, including conduct of the Claimant.
Where an applicant is a spouse/civil partner, the court will also consider the applicant’s age, the length of the marriage and the applicant’s contributions to the welfare of the deceased’s home and family.
Sometimes we see Wills where there is a clause in the Will which tries to make anyone bringing a claim forfeit any legacy they had been given. However, this is not usually be binding on the court.
If you have any concerns regarding a Will, whether it appears not to make proper provision or if you have simply have concerns regarding the preparation and execution of the Will, please contact Christopher Seddon, who is the head of our Private Client Team, for guidance and an initial free telephone consultation.
Telephone: 01483 796008