11:12am Tuesday 12th January 2010
By Richard Watson
GENERALLY, people are free to leave their property in their will as they think fit. It’s called the freedom of testamentary disposition.
There is, however, a safety net, because certain people with close connections to the deceased are able to make a claim under the Inheritance (Provision for Family and Dependents) Act 1975.
A claim can arise if somebody’s will does not make adequate provision for such a person. The same applies if there is an intestacy (when the deceased has not made a will) if that results in inadequate provision. Generally speaking, a claim has to be made within six months of the Grant of Probate or Letters of Administration although, sometimes, that period is extended.
There are several types of potential beneficiaries. First, there are husbands, wives and civil partners. A claimant in this class can apply for financial provision as would be reasonable in all the circumstances of the case for them to receive.
Every case will turn on its own facts but, for this category, a claim can be for much more than merely maintenance.
Secondly, there are co-habitees and the law requires the claimant and the deceased to have co-habited for at least two years. They are entitled to reasonable maintenance, something rather less than the first group.
Next come children of the deceased and certain children who are treated as such. They have a right to apply, irrespective of their age, whether they are married/in civil partnership or whether they suffer from any disability.
Their claim is restricted to reasonable maintenance which, normally, means that a claim will only succeed if a child is either under age, in education (eg. over 18 but at university) or disabled.
Of course, the deceased may have made very adequate provision during their lifetime or by will and, if so, the claim will not succeed.
The final category deals with other people who were dependant on the deceased and they have a right to maintenance if they meet certain conditions. This is an important case when there is a wider family.
In these days, family relationships are more varied than they were in the past. The law of intestacy does not make provision for co-habitees and step-children and, therefore, the Inheritance Act is very important. Addressing these issues is always going to be difficult, especially at a distressing time, and it emphasises how important it is, if you are affected, to obtain specialist legal advice.
* Richard Watson is partner and head of private client department at Crombie Wilkinson Solicitors.
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