A claim made pursuant to the Inheritance (Provision for Family and Dependants) Act 1975 (“IPFDA”) is a claim made no more than six months after the Grant of Probate for the Estate in question has been issued. It is a claim for “reasonable financial provision” where the potential claimant has not been properly provided for, if at all, in the deceased’s Will. A potential claimant does not need to be missed out of the Will entirely to make a claim, a claim can be made if the potential claimant believes that their share is not enough to meet their reasonable financial needs. A claim made pursuant to the IPFDA cannot include a claim for specific items as it is a claim based on the “need” of the claimant.

Eligible Claimants include:

• The spouse/ civil partner of the deceased. There is a presumption that partners rely and provide for one another so it is not necessary to prove impecuniosity (the state of lacking finances or material possessions);
• The ex-spouse of the Deceased could bring a claim, however whether financial matters were concluded between the ex-spouse and the Deceased at the time of death would be considered;
• A cohabitee of the Deceased, however the cohabitee and Deceased would have to have been cohabiting for at least 2 years prior to the death of the Deceased;
• A biological child of the Deceased;
• Someone who was “treated as a child” of the Deceased; and
• Someone who was “maintained” by the Deceased.

Once a claim has been made, the Court would need to consider:

• The present and future finances of all claimants and beneficiaries;
• The obligations and responsibilities that the Deceased had to any potential claimant or beneficiary;
• The size and nature of the Estate;
• Any disabilities of any claimant or beneficiary; and
• Other matters, such as the conduct of any party to the dispute. Poor conduct can result in an award for costs to the other party.

The above list is not an exhaustive list of all considerations as every claim is at least slightly different, but the above list details the initial considerations that any Court would reasonably consider.

A claim made by a spouse

The Claimant and the Deceased must have been legally married at the time of death. The Court would consider what “reasonable provision” ought to be provided to the spouse. The age of the parties, length of the marriage, and the contribution to the “family life” would be considered. The Court may consider what would have been received by the spouse in the event of a hypothetical divorce.

The paramount consideration by the Court would be what is fair, right and reasonable in this case?

A claim made by an ex-spouse

A claim could be made by an ex-spouse if there is a “decree nisi” in place. This is where the parties are separated but not legally divorced. It would be unlikely to succeed in a claim where financial matters have already been settled as it would be presumed that the ex-spouse has already received what they are entitled to.

A claim made by a cohabitee

There is an onerous burden to evidence if a claim is made by a cohabitee. The claimant must have been living as “man and wife” with the deceased at the time of death and for the two continuous years prior to death. This means that someone who just shared a property with the deceased would not succeed in making a claim. The court may still want to see what contribution the claimant has made to the “family”.

A claim made by a biological child

There is a presumption that children will become independent of their parents after they come of age. There is no forced heirship in the UK, meaning you do not have to make provision for your children in your Will. What was expected for the child would be taken into account, such as education fees if the child is still in or is about to be in education.

It is important to note that a child of the deceased cannot claim on their estate if they have been legally adopted by someone else.

A claim made by someone who was “treated as a child of the deceased”

The Court would consider the length of time the claimant was maintained for by the deceased and what the reasonable future expectation of this would be. Important factors the Court would consider here would be whether the deceased knew the child wasn’t their biological child or if there was anyone else who also assumed maintenance for the claimant.

Claims made pursuant to the IPFDA 1975 can be quite complex and are a highly emotive field of law and so require specialist assistance.

For further advice and assistance please contact our Litigation and Dispute Resolution team on  01604 828282 / 01908 660966 or email info@franklins-sols.co.uk.

It is possible to stop the distribution of inheritance to beneficiaries should you wish to make a claim against the deceased’s estate.

In order to do so however, you must act promptly.

The first step is to create a document called a Caveat. A Caveat sets out the details of the person who has passed away and the date of their death. This helps the Probate Registry identify the relevant estate. The form has a prescribed form and when sent to the Probate Registry it must be accompanied by the appropriate fee. 

If a Caveat is lodged with the Probate Registry before the application for a Grant of Probate or Letters of Administration has been filed, it prevents the issue of the Grant or Letters of Administration. The Personal Representatives will not be able to collect the assets of the estate together or sell any of the deceased’s properties until the Caveat has been removed.

A Caveat is only in place for a 6 month period although it is possible to renew it.  During the 6 month period, this time should be used to investigate and present any claim.

The Caveat can be removed by a Personal Representative.  In order to make this challenge, the Personal Representative lodges what is called a Warning at the Probate Registry.  No fee is required to do this.

The Warning is sent to the person who entered the Caveat and they in turn have a short period of time to respond.  This is called “entering an Appearance” at the Probate Registry. 

If there is a failure to enter an Appearance, an Affidavit of Service of the Warning is lodged with the Probate Registry and the Caveat will then be removed enabling the Personal Representative to apply it for a Grant. 

If however an Appearance is entered, the Caveat remains in place until the issues are resolved and the Caveat removed by consent between the parties or by Order of the Court. In many cases it is removed by consent once substantive issues are resolved or agreed.

The Appearance sets out to the Court why the objection has been raised and also the interest the Caveator (the person filing the Caveat) has in the estate along with the reasons why the Caveat has been lodged.  The reasons for lodging it must be valid and not vindictive.

A failure to send an Appearance at the correct time or at all is likely to lead to the Grant of Representation being allowed to proceed. It is important that the Appearance covers all the relevant issues as this too may result in the Caveat being set aside and the Grant being issued.

If you wish to challenge a Will or indeed review the distribution of inheritance, it is important to obtain advice early.

For further information in relating to an inheritance dispute, contact Maninder and the Dispute Resolution team on 01604 828282 / 01908 660966 or email Litigation@franklins-sols.co.uk.

If an individual executes a Will they do so because they wish to dispose of their estate as they please. Equally, if an individual does not execute a Will then their estate will be distributed in accordance with the Intestacy Rules.

What if a deceased does not leave you enough or nothing at all whether in their Will or under the Intestacy Rules and you were financially dependent on them?

The Inheritance (Provision for Family and Dependants) Act 1975 (“The Act”) is an Act of Parliament that provides protection to individuals who have been financially dependant on a deceased.

The Act will come into play when a Will or the Intestacy Rules fails to provide a “reasonable financial provision”. The Act provides protection to spouses, civil partners, co-habitees, children and any other dependants who have survived the deceased and been left without the relevant means to survive.

Am I eligible to make a claim under the Act?

There are certain categories that must be explored and satisfied in order to be eligible to present a claim to Court and these are as follows:

1. The deceased must have been living in England and Wales at the time of death;
2. As an applicant, you must be one of the below as outlined in Section 1 (1) of the Act:
   • The Spouse of Civil Partner of the deceased;
   • A former Spouse or Civil Partner of the deceased who has not re-married or entered another civil partnership
   • A child of the deceased;
   • A person treated like a child by the deceased by virtue of a marriage of civil partnership;
   • A person who was immediately before death of the deceased maintained, either wholly or partly on the deceased;
   • A person who was cohabiting with the deceased and living with them for a period of at least two years.
3. If the above is satisfied, then there is a strict time limit to lodge an application to Court of six months from when the Grant of Probate or Grant of Letters of Administration was issued from the Probate Registry.

What will the Court consider when determining my application under the Act?

The Court will need to consider whether there has been reasonable financial provision for you. Determining this is subjective and based on each individual application and the Court when deciding the same will do so on several factors.

What factors will the Court consider?

The Court will need to consider the applicant’s needs and resources and consider what is reasonable for them to receive for their own maintenance. Such factors are set out in Section 3 (1) of the Act which can be found below:

“(a) the financial resources and financial needs which the applicant has or is likely to have in the foreseeable future;

(b) the financial resources and financial needs which any other applicant for an order under section 2 of this Act has or is likely to have in the foreseeable future;

(c) the financial resources and financial needs which any beneficiary of the estate of the deceased has or is likely to have in the foreseeable future;

(d) any obligations and responsibilities which the deceased had towards any applicant for an order under the said section 2 or towards any beneficiary of the estate of the deceased;

(e) the size and nature of the net estate of the deceased;

(f) any physical or mental disability of any applicant for an order under the said section 2 or any beneficiary of the estate of the deceased;

(g) any other matter, including the conduct of the applicant or any other person, which in the circumstances of the case the court may consider relevant.”

Are the above factors same for each applicant?

No. Any claim under the Act made by a spouse or civil partner are different and the Court when determining what is reasonable will look further than what is required for maintenance and consider the following factors as set out in Section 3(2) of the Act which are summarised below:

1. The age of the applicant and the duration of the marriage;
2. The contribution the applicant made to the welfare of the family;
3. What the applicant would have reasonably expected to receive had the marriage been terminated by a divorce.

Is Court the only option?

Given the time, emotion and cost that can go into pursuing such a claim it is always advisable to consider Alternative Dispute Resolution (ADR) as an option to resolving disputes at the earliest opportunity. ADR is a Court free environment and is cost effective and quicker than going to Court. Here at Franklins Solicitors LLP we embrace all forms of ADR.

Claims such as these can strain relationships and divide families. Given the strict time limits it is imperative if you are contemplating a claim under the Act to seek specialist advice to ensure a full case plan is prepared to outline your options and next steps.

If you require legal advice or assistance in regards to contentious probate and Trusts or Inheritance Act Claims, please do not hesitate to contact a member of the Dispute Resolution Team here at Franklins Solicitors either on 01604 828282/ 01908 660966 or at litigation@franklins-sols.co.uk.

Marion Horsford defeated her son, Peter Horsford over a £6 million country estate to ensure she received her share.

Peter Horsford had worked on the family farm since he was a schoolboy and purportedly sacrificed his childhood to labour on the family farm. He also alleged it had been promised that the 540-acre estate would “all be his one day.”

Mrs Horsford split from her husband in 2011 and retired from the family farming partnership and requested £2.52 million from her son for her share along with £23,000.00 in past profits. Mr Horsford who had been diagnosed with dementia was unable to clarify who was due the share of the estate.

Peter Horsford’s refusal to pay his mother was on the basis that he had received a lifetime of assurances and argued if he had to pay her, he would need to sell the farm.

Mrs Horsford however argued that she wanted fairness for her three children and that her son had already benefited from his own hard work on the farm and his parents generosity over the years.

The matter went before the High Court and Judge Rosen ruled in favour of Mrs Horsford. Judge Rosen stated that although Mrs Horsford had said previously she might leave him her share she had not promised this and therefore was entitled to the share she requested.

In delivering the judgment, Judge Rosen believed there was a clear distinction between a promise and statements of intent and referenced to Mrs Horsford’s diary wherein which she made references to her “darling daughters.”

Peter Horsford however believed it was his right to inherit the whole estate and grew up on the same assurances.

He also alleged that in order to pay his mother the £2.52 million the farm may need to be sold.

Disputes such as this can strain relationships and drive families apart. If you require legal advice or assistance in disputes surrounding Inheritance Disputes and Promissory Estoppel, then please do not hesitate to contact a member of the Dispute Resolution Team here at Franklins either on 01604 828282/01908 660966 or at litigation@franklins-sols.co.uk.

The case of MacDonald v Rose [2019] EWCA Civ 4 brought to the forefront the key elements of the doctrine of proprietary estoppel. The case lends itself to being memorable in the future by many law students as it relates to Mr Macdonald and a farm.

A contested Will and a family feud

Mr MacDonald brought a claim before the courts on the death of his parents and after he discovered that the family farm was to be split between his parent’s six children and not left solely to him. 

Mr MacDonald claimed that his parents had assured him over many years that he would receive the bulk of their estate on the basis of him continuing to work on the family farm during their lifetime. He claimed therefore that he worked on the family farm in reliance of these assurances and that it was unconscionable for his parents’ estates not to give effect to those assurances. His five siblings objected and sought to uphold their parents will which saw the assets split across all six children.

The siblings, the defendants, told the Court that they were a close-knit family. They added that no child was ever favoured above and beyond another. In addition, they stated that each sibling had been told on several occasions that they would all share in the estate. The Court heard from numerous witnesses, including non-family members, all of whom provided an account of events strongly supporting the defendants’ position.

The Court found that the substantial witness evidence produced by the defendants was persuasive.  The Judge noted that Mr MacDonald had run his own successful business and that during this time had not worked on the farm. The Judge considered that it could not therefore have been the case that as a family member he had worked his whole life on the farm for little recompense. The Judge concluded that Mr MacDonald’s parents had not given the assurances as alleged and the case was dismissed. The Court of Appeal reviewed the matter and upheld that decision.

The proprietary estoppel – A promise

This case saw the Court consider a legal doctrine known as proprietary estoppel. There are 4 elements to proprietary estoppel; namely:

• A promise
• An act in the reliance upon the promise
• A detriment suffered
• The unconscionability of the position

A claimant must show that there was a promise made to them. The actions of the claimant must then be to rely upon that promise. When reasonably relying on a promise made, the claimant must show that they have suffered some form of detriment. Finally, it must be unconscionable for the promisor to be permitted to retract his or her promise.

A Court determines how best to satisfy what an equitable right is when a claim is established. It is a matter of justice being seen to be done.

Each case is decided upon its own individual facts. The MacDonald case demonstrated that it is necessary to show that all the elements of proprietary estoppel are connected and that witness evidence can be critical.

For further advice and assistance please contact our Private Client Team on 01604 828282 / 01908 660966 or email info@franklins-sols.co.uk