Provision for Family and Dependants
As a general principle, under English and Welsh law, you can leave your property to whomever you wish after you die.
However, the Inheritance (Provision for Family and Dependants) Act 1975 provides that the following persons can make a claim against your estate, on the basis that either your Will or the rules of intestacy have failed to make adequate financial provision for them:
- Your spouse or civil partner
- Your former spouse or civil partner who has not remarried or entered a new civil partnership
- any person who during the period of two years before your death was living in the same household as your spouse or civil partner
- any of your children (this includes legitimate, illegitimate, adopted and those treated as ‘children of the family’).
When considering a claim, the court will have regard to the following:
- The financial needs and resources of all claimants on your estate
- The moral obligations to all claimants
- The size and nature of your estate
- The mental and physical disability of the claimant, having regard to the availability of state help
- Any other matter the court considers
Additional guidelines for spouses and civil partners.
The court will also look at:
- The age of the applicant
- The length of the marriage/civil partnership
- The financial contributions to the welfare of the family
- The provisions expected on divorce or termination of civil partnership
It was thought that claims relating to adult children would not generally succeed other than where they had been maintained before death or in other exceptional circumstances. This opinion has since been revised in 2011 and in subsequent years in the case of Ilot v Mitson.
In Ilot, the parent and child had been estranged for many years. The mother had left all her estate to charity and the child was living on state benefit and had several children of their own. The court held that, providing there is no financial provision of a child by the parent during her lifetime, it was unreasonable for her Will to make a financial provision, particularly as the estate went to charity.
© Atkins Dellow LLP 2021
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