Old Law, New Claims.

September 8, 2019 by Melinda @ Giles Wilson


Earlier this summer, I wrote about the case of the two step-sisters who fought in law over a property in Leigh on sea.  This was not the only contested probate case that we have seen this summer, and this time it is the 1975 Act that has been considered by the Court.

One way in which a will (or even the lack of a will) can be challenged is if someone who is financially dependent upon the deceased at the time of their death, feels that they have not received enough financial provision from the will or the intestacy.  The law is found in the Inheritance (Provision for Family and Dependants) Act 1975. 

How does this law help those who think they have a claim?

Examples are where a couple have lived together, but are unmarried.  The person who owns the property dies without a will, and the property passes completely to the next in line on intestacy; this could be a parent, or a child, or even a brother/sister.  Where does this leave the partner who has lived in the property without paying rent for years, expecting to live there forever.  That partner may well have a claim for dependency. 

However, they must act quickly. This Act provides that claims must be brought within 6 months of the Grant of Probate being issued.

The case that was heard this summer, brought a claim out of time.  The case was so complex and the arguments so fine, that the case went to the Court of Appeal.  In this case, the claim was allowed out of time because it was felt that the case had such a strong chance of success, that the reasons for the delay were not the main issue to consider.

But the message from the courts is very clear; do not delay in taking advice if you feel you are in an unfair position because someone close to you has died.  It could be a different situation than the one described above.  It could be that you were promised an inheritance if you contributed in a certain way, or gave up other rights, or acted to your detriment.  

The society that we live in now is vastly different to that of 1975 when this Act was brought into effect (although it was as far back as 1938 that this need was first recognized in English law to deal with wayward Edwardian fathers who made wills excluding their wife and children).   We find claims made under this Act are for partners as well as step children, or those with disabilities who need more financial provision than has been left to them.

It remains the law in England however that you can still make a will benefitting whoever you choose.  But if it is not responsible to those that you support, it could be challenged.  Take advice when making your Will.

To read Melinda's previoous

This editoral is by Melinda Giles at Giles Wilson Solicitors.  

For legal advice please call 01702 477 106 or visit one of Giles Wilson's offices: 1711 London Road Leigh, 54 Leigh Broadway, 5 Roche Close Rochford  

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