Legal Clarity: Understanding Inheritance Act Claims – A Hatch Brenner Podcast

Welcome to Legal Clarity, the podcast brought to you by Hatch Brenner Solicitors. Join us as we explore legal insights, real case studies and personal stories that aim to both inform and empower. In this episode, Dispute Resolution solicitor Janet Lane sheds light on a vital topic: understanding Inheritance Act claims. She’ll explain who can bring a claim under the Inheritance Act of 1975, what factors the court considers when deciding if reasonable financial provision has been made, the strict time limits involved in making a claim, and how claims can often be resolved through negotiation rather than going to court. If you’re facing uncertainty after a loved one’s death or believe you’ve been left without reasonable provision, this episode offers clear, expert guidance to help you understand your rights. So Janet, who can claim under the Inheritance Act?

Janet: The Inheritance Act sets out specific categories of applicants, which are: surviving spouse (and this includes a judicially separated spouse or a civil partner), a party to a voidable marriage—that is, a marriage that was not annulled before the testator died—and persons who have entered into a polygamous marriage. It does not include a person who has been a party to a ceremony that does not amount to a marriage in accordance with the law of England and Wales.

So you’ve got the surviving spouse. Then there’s the former spouse, provided that at the date of the testator’s death, the claimant hadn’t remarried, and the marriage was during the testator’s lifetime and either dissolved or annulled by decree or divorce granted in the UK.

The next category is cohabitees. They have to have been living with the testator as husband and wife, or as civil partners, in the same household for two years immediately prior to the testator’s death.

Then we have the category of a child of the testator, which includes adopted or illegitimate children and a child conceived before the testator died but born after death.

Next, we move on to a child of the family. This claimant must show that they’ve been treated as a child of the family in relation to a marriage or civil partnership between the testator and another person. It doesn’t apply if there was no marriage.

And then finally, a person treated as a dependant of the deceased. This is a catch-all, really, to enable anybody who doesn’t fall within the other categories or can’t establish a relationship to make a claim under those categories. They can claim provided they can show that immediately before the testator died, they were being wholly or partly maintained by the deceased.

What factors does the court consider?

Janet: There are seven main factors.

1. The financial needs and resources that the applicant has or is likely to have in the future.
2. The financial needs and resources which any other applicant has or is likely to have in the foreseeable future.
3. The financial needs and resources of any beneficiary of the estate or the deceased has, or is likely to have, in the foreseeable future.
4. Any obligations and responsibilities the deceased had towards any applicant or towards any beneficiary of the estate.
5. The size and nature of the estate of the deceased.
6. Any physical or mental disability of the applicant or any beneficiary of the estate.
7. Any other matter, including the conduct of the applicant or any other person, that, in the circumstances of the actual case, the court might consider relevant.

What are the time limits for making a claim?

Janet: The time limits are very strict in bringing Inheritance Act claims. A claim has to be brought before the end of six months from the issuing of the grant of representation—so that’s like a grant of probate or letters of administration. The claim must be made before the end of six months from the day the grant was issued.

The claimant can apply for permission to bring the claim out of time, but obviously that’s not advisable. If there’s an application for permission to bring a claim out of time, the court must consider, amongst other things, whether it would be just and proper to grant permission, how promptly the claimant sought permission after the time limit expired, and in what circumstances. Was the defendant on notice of the claim? Did negotiations take place before the time limit expired? Had the estate already been distributed? What would be the effect on the beneficiaries if permission is granted?

And finally, the court will consider whether, if permission were refused, the claimant would have a claim against anybody else—such as a solicitor—for failing to advise them to bring a claim. Obviously, it’s best not to leave the matter until limitation expires. There can be an agreement to extend limitation, and this should always be looked at at a very early stage.

How do you negotiate a settlement without going to court?

Janet: As in any area of claim, there’s always an opportunity to try and settle a matter without the need for court proceedings. But in Inheritance Act claims, because of the very short time limit, sometimes it’s not possible to reach an agreement before proceedings must be issued to protect the claim.

Better outcomes can often be negotiated rather than relying on an order made by the courts, so this needs to be considered as soon as it becomes clear there may be a claim against the estate. There can be negotiations to delay obtaining the grant so that the time limit doesn’t start running. Also, there is the availability of what we call standstill agreements, which means the defendant party agrees not to issue proceedings during a specific period of time. What the defendant is effectively doing is agreeing not to raise the issue of the expiry of limitation as a defence.

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