If you have not been left anything when you are expecting it under someone's Will or because they have died intestate (without a Will) that does not mean that all is lost.
The law accepts that a testator can leave his or her money to whoever they like. However the law recognises that certain people have a claim against an estate and if you are one of them then you can challenge the Will or intestacy if adequate financial provision is not made for you.
There are 5 set classes of Claimants:
- Spouse or civil partner;
- Cohabitee (someone living as husband or wife with the deceased for at least 2 years immediately prior to death). Same sex cohabitees are covered;
- Former spouse or civil partner who was receiving maintenance and has not remarried or entered into a new civil partnership;
- Child or a person treated as a child of the family (which can include adult children);
- Anyone partly or wholly maintained by the deceased immediately before their death.
Whether you fall in one of these categories is usually a relatively simple question. Whether you have been left adequate financial provision is quite another question. How one calculates adequacy depends on which category you fall into. Contact us for more information about the prospects of succeeding in such a claim.
Whilst it is still easier for those at the top of the list to be able to bring a successful claim than those near the bottom it has been the case over the last few years that the courts have been more prepared to interfere with the provision made in Wills than they used to be. For instance in a recent decision a daughter estranged from her mother for many years, to the point where her mother had not even attended her marriage, and who had never relied upon her mother, was nevertheless found to be entitled to challenge a Will which left her nothing.
Perhaps not unsurprisingly if there is no Will there are often dissatisfied parties who frequently have good grounds for challenging the lack of provision. Under intestacy provisions unmarried partners do not benefit at all and therefore usually have a good claim under this Act. A recent example saw an estate of five million pounds passing to the deceased’s estranged wife rather than to his current partner. The partner attempted to rectify matters by forging a Will rather than by making a claim under this Act and accordingly faces a criminal sentence rather than inheriting at least some of the large estate. That case was a prime example of someone who should have made a Will but by not doing so left all sorts of possibilities for a challenge to the provision left by his estate.
There is a strict time limit for bring these challenges. Save in exceptional circumstances such a claim needs to be brought within six months of the grant of probate or administration.