The purpose of the Act is to allows an individual, who was financially dependent upon the testator (person who made the will), to bring a claim against the estate if the will does not provide reasonable financial provision for them.
There are 6 classes of people who qualify to bring a claim. They are:
- The spouse or civil partner of the deceased;
- The former spouse or civil partner of the deceased (but not one who has formed a subsequent marriage or civil partnership);
- A partner of the deceased who resided with the deceased during the whole two year period ending on the date of the deceased’s death;
- A child of the deceased;
- Any person who is not a child of the deceased but was treated as a child of the deceased at any time;
- Any person who, immediately before the death of the deceased was being maintained, either wholly or partly, by the deceased.
The test as to whether or not the estate left reasonable financial provision does not apply to a spouse or civil partner. Instead, in broad terms, they are entitled to receive what they would have done upon divorce or dissolution.
The 5 remaining classes of applicant must establish that the estate does not provide them with reasonable financial provision. In making its decision as to this, the Court must take into account various factors, including:
- The financial resources and financial needs which the claimant has and is likely to have in the foreseeable future (for example, if a potential claimant is wealthy, their claim will not be as strong because the need to make financial provision for them will be reduced);
- The financial resources and financial needs of other claimants (there can be more than one);
- The financial resources and financial needs of other beneficiaries (to promote fairness and ensure other beneficiaries financial needs are not compromised);
- Any obligation the deceased had towards the applicant or other beneficiaries;
- The size and nature of the estate;
- Any physical or mental disability of any applicant;
- Any other matter, including the conduct of the applicant (how the applicant has behaved) which the Court considers relevant.
If the Court decides that the estate does not leave reasonable financial provision, it has wide powers to make orders as to the assets of the estate. For example, the Court could order that an applicant:
- Is given a lump sum of money, immediately or deferred;
- Receives payments by instalments to provide an income;
- Benefits from monies being placed in a trust for a certain use;
- Receives an interest to reside in a property.
We understand that whether making a claim or settling a claim of this nature which usually involves family and friends, the process can be very emotional and stressful. We therefore adopt the approach of generating “more light than heat” in order to settle claims in a pragmatic and fair manner.
The above does not represent advice or a full explanation of the law. Each case turns on its own facts and it is important to obtain advice. Contact us now for a free consultation.
We work on a fixed fee or “pay as you go” basis.
We will also always consider being paid at the conclusion of your case.