Inheritance Claim

Posted by - - Will & Estates.

There are many ways to challenge a will. This post will look at moving behind the will of a deceased person to make an inheritance claim under the Inheritance (Family Provision) Act 1972. That act gives certain people the right to apply to a court for an order that greater provision be made for that person out of the deceased estate.

Who can make an inheritance claim?

The persons who are entitled to the benefit of the act are:

·             the spouse, former spouse or the domestic partner of the deceased person;

·             a child of the deceased person;

·             a child of a spouse or domestic partner of the deceased person was maintained or entitled to be maintained by the deceased person immediately before his or her death;

·             a child of the child of the deceased person;

·             a parent or sibling of the deceased person who satisfies the court that he or she cared for, or contributed to the maintenance of, the deceased person during his or her lifetime;

·             a brother or sister of the deceased person who satisfies the court that he or she cared for, or contributed to the maintenance of, the deceased person during his or her lifetime.

It is one thing to be able to make an inheritance claim under the act, quite another to be successful in obtaining an order. Courts will only make such an order if they satisfied that the applicant is left without adequate provision for his or her proper education, maintenance or advancement in life. The gist of the act is that willmakers, although nominally free to leave their estate however they wish, may have an over-riding moral obligation to make provisions for certain people, and if they don’t, the court can intervene on the application of such a person.

Domestic partner failed to qualify for an inheritance claim

The vast majority of claims settle prior to trial, but many don’t, and there is a vast swathe of new case law each year. Even something as (apparently) simple as whether a person is a domestic partner of the deceased can be controversial. In M & S & Ors v Public Trustee [2017] SASC 71 the applicant met a man in 2014 and soon moved some of her possessions into his house. They socialised together, decided to become engaged (without making any public announcement), shared some expenses, and he authorised her to draw on his bank accounts whilst he was in hospital. She continued to receive social security payments as a single person, and did not inform the department that she had changed her address or that she was had a partner. He died. She claimed. Her family said they were in a domestic relationship; his family said they weren’t. The court agreed with his family, and as such, the applicant was not able to claim the benefit of the act and seek an order for greater provision out of the deceased’s estate.

Leave a Reply

XHTML: You can use these tags: <a href="" title=""> <abbr title=""> <acronym title=""> <b> <blockquote cite=""> <cite> <code> <del datetime=""> <em> <i> <q cite=""> <s> <strike> <strong>