Under the 1975 Act, a testator, that’s a person who makes a Will, dies in England and Wales, could be presented with a claim for reasonable provision from the following:
- The spouse or civil partner of the deceased
- A former spouse or former civil partner who has not remarried or formed a subsequent civil partnership
- A child of the deceased
- Any person treated by the deceased as a child of the family
- Any person who immediately before the death of the deceased was being wholly or partly maintained financially by the deceased
- Any person who was at the time of the deceased’s death, and during the whole of the preceding two years, living in the same household as the deceased as the spouse of the deceased
- All the above categories could have a valid claim against an estate if adequate, reasonable financial provision was not made for them
Who decides on any claim against my Will?
For a claim to succeed against an estate, will depend completely at the discretion of the court. In essence, the court may make an award after balancing carefully the wishes of the deceased, the facts of the case, the interests of the beneficiaries and the available assets to satisfy those claims.
The role of the court is to carefully assess the needs of the parties concerned, whether it was the testator’s duty to satisfy those needs, and if it is reasonable for the court to interfere under the terms of the Act. All of the above is at the discretion of the court.
According to case law, the court has set out the following principles:
- A testator has testamentary freedom but at the same time, he/she has an obligation to make reasonable provision for a spouse or minor children.
- The approach of the court should be a two-stage process:
- Was reasonable for the testator not to make provision; and
- In the event that the provision or lack of it, is unreasonable, the court must decide at their discretion what provision should be made under the 1975 Act.
In most cases where a dispute over a Will occurs (typically between family members) it is best to seek to resolve any disputes amicably. Where this is not possible then court action might be the only alternative, but it comes at a cost both personally and financially. Let us know if you would like to speak to our Private Wealth & Inheritance team about making a Will or with our Dispute Lawyers
