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Dependency Claims and Challenging a Will

Dependency Claims and Challenging a Will

Expert view

Just because a will has been written properly and is legally valid, it doesn’t necessarily mean that the will cannot be disputed, particularly by someone who is a dependant.

The law in this country says that when someone makes a will if they do not make ‘reasonable financial provision’ for their dependants then this person or persons can make a claim under The Inheritance (Provision for Family and Dependants) Act 1975 (the Act).

If a dependant has been insufficiently provided for, or been left out of a will entirely, it’s possible for them to challenge the will and claim a portion of the estate. Any successful award would help them cope without the financial support they previously received.

Under the Act, the following people can make a claim:

  • A Spouse or civil partner
  • A previous spouse or civil partner who has not remarried or entered into another civil partnership
  • Someone who has lived with their partner for at least two years just before they died
  • A child of the person who died
  • A person who was treated as a child by the person who died
  • Anyone else who was being financially maintained by the person who died

 You can see that there are a number of people who can make a claim under the Act but it’s not just about being classed as a dependant. The chances of a successful claim will also depend on a number of other factors.

These factors are:

  • The financial position and needs of the individuals named in the will
  • How large the estate is and what it’s made up of – e.g. property, cash etc.
  • Whether the individuals named in the will or those making a dependency claim have a disability
  • Anything else that could affect the claim, including the conduct of the parties involved.

All of these factors combine to make each and every case different. As a result it can be difficult to know how much a dependant might receive.

The Act does clearly distinguish between former spouses/civil partners and all other dependants when it comes to what they are entitled to claim.

Previous spouses and civil partners can claim for financial provision. This would be reasonable in all circumstances, whether it was required for their maintenance or not.

All other dependants are limited to claiming reasonable financial provision for their maintenance.

The effect is that civil partners or spouses can successfully claim higher awards under the Act. This is because these awards are not limited to the maintenance based approach applied for everyone else.

Any dependency award will be a ‘reasonable amount in the circumstances’. This could be as much as half the property or a small amount of cash.

Any dependency claim has to be made by starting court proceedings within six months of the date of the Grant of Probate. This is a short time limit and means claims can occur shortly after someone’s death.

Any claim on an estate will be emotionally charged. Getting advice from an experienced will disputes solicitor can help you understand the next steps, whether you’ve been left out of a will or someone is claiming against a will.

Call our Wills and Probate Disputes Team now on 0117 926 4121 or make a Free Online Enquiry. We’re happy to offer you a free initial discussion about your circumstances.