If you have been excluded from a Will then in most cases, the wishes of the deceased would remain unchallenged as, in most cases, the person who made the Will would have received adequate and appropriate legal advice at the time of making their Will. There are however certain situations whereby you can make a request for a Court to order an amount be paid to even if the deceased person has left a valid Will. In deciding whether to make an award to applicant under the 1975 Act, the Court considers various factors, including:
- the financial resources and financial needs (current and foreseeable future) of the applicant, any other potential beneficiary and the beneficiary/beneficiaries of the Will or Intestacy Rules;
- the obligations and responsibilities of the deceased person towards the parties;
- the size and nature of the deceased’s estate;
- any physical or mental disabilities of the parties; and
- any other relevant factor, including conduct.
These factors are outlined in full in section 3(1) of the 1975 Act (https://www.legislation.gov.uk/ukpga/1975/63/section/3), and there are also other factors that relate to specific types of applicants outlined in the remainder of section 3 of the 1975 Act.
The burden of proof to establish that “reasonable financial provision” has not been made for them in the Will or under the Intestacy Rules lies firmly with the applicant. Their evidence needs to be up to date at the time of any hearing or the trial in the matter. The standard of proof is an objective one to each individual applicant and will depend on the circumstances of each individual case.
As previously mentioned, the Court considers many factors in deciding an applicant’s claim. Those factors are all given equal weight, unless they are wholly irrelevant to the applicant’s claim.
What does ‘in financial need’ actually mean and how to prove it.
The first and usually the most important factor in 1975 Inheritance Act claims is that an applicant under the 1975 Act would need to evidence that they were in financial need in order to succeed. The applicant will need to present to the Court (and to the other side beforehand) what assets they own (for example cars or property and on what basis it is owned), what debts and liabilities they have (for example any credit card debt or loans), what their monthly income is (with supporting wage slips and/or benefit statements), what their monthly outgoings are (including a schedule of all expenditure), and therefore what their monthly deficit is if any.
It is up to the beneficiaries whether they choose to disclose their financial resources in return, but if they choose not to, the Court could refuse to allow them to raise a ‘needs-based’ defence to the applicant’s claim. I.e. they are assumed not to be in financial need.
What ‘obligations and responsibilities’ do the Court look for?
As mentioned above, the Court will also pay regard to the obligations and responsibilities the deceased owed to the applicant and beneficiaries. When considering this factor, case law has outlined that it is important for the Court to consider the moral obligation placed on the deceased towards the applicant and beneficiaries. For example, did the deceased maintain that person prior to their passing, and should that continue after their death on moral grounds?
Also, does the applicant have a reasonable expectation of receiving some inheritance from the deceased Will and Estate? Did the deceased agree, verbally or otherwise, to maintain that person until they were a certain age, or a certain event occurred? Did the deceased say that person they would receive something when they died etc?
What is ‘Net Estate’ and how can this affect my claim?
The definition of a deceased person’s net estate for the purposes of the 1975 Act is different to that used for ‘normal’ probate matters. Under the 1975 Act it is possible to ask the Court to consider any jointly owned property (such as a property held as joint tenants, which would ordinarily pass via the rules of survivorship under ‘normal’ probate) and/or assets that are nominated (such as a life insurance policy, a pension or a death in service payment, which would ordinarily pass to the nominated person(s) under ‘normal’ probate). Ultimately, all parties and the Court, need to be satisfied that any potential award is capable of being met by the net estate, and the net estate is sufficient to withstand such an award.
To learn more please have a read of our blog "I've been excluded from a Will. Can I make a Claim?".
Here at Thornton Jones Solicitors we have a specialist team of solicitors who can assist you and guide you through the process of making an application. To find out more call us for a free initial consultation at any of our four West Yorkshire based offices.
Call us to discuss further and to make an appointment at any of our four West Yorkshire based offices.
Solicitors in Wakefield - Call 01924 290 029
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Thornton Jones Solicitors are a firm of Solicitors in Wakefield. We have a wealth of experience in providing Wills, Powers of Attorney, Probate, Contentious Probate and other Private Client Solicitor services. We also have offices in Garforth, Ossett and Sherburn in Elmet so if you are looking for a Solicitor in Garforth or a Solicitor in Sherburn in Elmet then call us to discuss your matter and to book an appointment.