Am I too late to bring a claim for maintenance under the Inheritance Act 1975?

As unpalatable as it may seem following the death of a loved one, if the deceased’s will does not make provision for you, you will need to act quickly to bring a claim for maintenance under the Inheritance (Provision for Family and Dependants) Act 1975.

In the aftermath of the death of your spouse or parent, the last thing that might be on your mind as you plan a funeral, deal with the administration that comes hand in hand with death is legal action challenging your loved one’s will. However, if the will does not make adequate provision for you, you need to take action within legally defined time limits for contesting a will, or you will lose the opportunity to do so.

Inheritance Act Claim for Maintenance

The Inheritance Act (Provision for Family and Dependants) Act 1975 (‘the Inheritance Act’) allows certain individuals closely connected to the deceased to make a claim for ‘maintenance’ from the deceased’s estate. This is not a will dispute where the validity of the will itself is being challenged. It is challenging a will on the grounds that it does not make “reasonable financial provision” to certain members of the deceased’s family.

In this situation, a claim must be brought within 6 months of the grant of probate. The grant of probate is the point at which the will is effectively approved, and the executors of a will can distribute the assets amongst the beneficiaries of the will. Some executors will delay distributing an estate until 6 months have passed from the grant of probate to make sure there are no such claims before distributing the estate. Otherwise, a successful claim under the Inheritance Act may result in a redistribution of assets.

Inheritance Act claim where there is no will

When the deceased has died intestate – without leaving a will – his estate will be divided according to the intestacy rules which were updated recently. The current intestacy rules only make provision a deceased’s partner if they were married or in a civil partnership. If you are living with and were dependant on the deceased but received nothing under the intestacy rules because your relationship had not been legally formalised, you could make a claim for maintenance under the Inheritance Act. In this case, as in situations where there is a will in place, the claim must be brought within 6 months of the grant of probate.

Extending the Inheritance Act time limits

In certain circumstances, it may be possible to argue that a time limit for bringing a claim should be extended, but this is not a reason to delay seeking advice or bringing your claim if you have one. As we’ve seen, the strict time limit exists to give certainty to those dealing with the estate, and beneficiaries under the will. However, in limited circumstances, it may be possible to submit a claim after the 6 month time limit. Following the case of Berger v Berger, the questions a court will consider in relation to extending the time limit are as follows:

• Had negotiations with the estate started before the end of the time limit?
• Had the estate already been distributed before the defendants were aware of the claim?
• Would dismissing the claim leave the applicant with no other remedy?
• Would the applicant have an arguable case if the application were allowed to proceed now? and
• Have previously unknown facts have come to light which provoke a claim?

It is important to stress that the courts are reluctant to allow claims outside the 6 month time limit. In the Berger v Berger case, the claim – by the deceased’s second wife, was brought some 6 years after the grant of probate.

Taking early advice from a professional will help you understand whether you do actually have a claim – and that the claim is worth pursuing – and the time limits that apply to contest a will in the manner that you are considering. With that knowledge you can then decide how to act, gather evidence and make your case with the help of your solicitor. We can offer a ‘no win no fee’ arrangement to work on most cases involving a will dispute. Why not get in touch to find out more?