After the death of a person, their Will can be contested by relatives, dependents and others. A claim can be made for ‘reasonable financial provision’ in the Court. Similarly, if a person died without a will, the claim can be made under intestacy rules.
Who can make a claim against the estate?
Not everyone can make a claim against the estate, the following people may be able to make a claim:
- A spouse or civil partner
- Former spouse or civil partner who hasn’t remarried or registered a new civil partnership; they should also not have a court order barring them from making a claim at the time of their split
- Any person cohabiting with the deceased for 2 years prior to their death; they must be a spouse or a civil partner
- Children including illegitimate, adopted, adult and conceived but not born; stepchildren cannot make a claim unless they were adopted by the deceased
- Any person the deceased maintained, financially or in other valuable manner; the person must have been looked after until death to qualify for a claim
What’s the criteria for making a claim?
A spouse or civil partner does not need to be in financial need or financially dependent to make a claim. The court takes into account their age, responsibility for minor children, contribution to the family, length of relationship and what they would have received in case of separation with the deceased.
Former spouse would have to provide similar information but also include the circumstances of divorce or separation. They could have agreed a clean-break, which needs to be taken into account too.
All other applicants can only get financial assistance from the estate if they are in need or were financially dependent on the deceased. The court takes into account:
- Present and future financial needs and resources of the applicant
- Present and future financial needs and resources of any beneficiary of the estate.
- Deceased’s obligations and responsibilities towards the applicant and towards any beneficiary under the will
- Size and nature of the deceased’s estate
- Any physical or mental disability of any applicant or beneficiary.
- Any other matter like conduct of the applicant
In this scenario, making a claim is difficult and needs to be discussed with a professional before being made.
How much time is there to make a claim?
A claim for reasonable financial provision must be made within six months after probate or letters of administration have been issued, although the court can extend this period in certain circumstances
What can the court do when a claim is made?
If the court decides that the applicant deserves financial assistance from the estate, they can order:
- Regular payments from the estate
- A lump sum payment
- A transfer of property from the estate
- Setting up of a trust (eg to provide a home for the spouse to live in for life)
- Variation of a post-marriage settlement
You can read our Wills & Probate FAQ section for more information about this specific area of law.