Although under English law you’re not obliged to provide for anyone, in particular, there is a law that allows certain categories of relatives, dependants and co-habitants to make a claim against your estate. They can claim for reasonable provision if they feel they haven’t been adequately provided for by your estate, whether or not you left a will. This applies even if you made a gift to them in your will. They can still bring a claim if they feel you did not make sufficient provision for them.
There are two different standards of awards the court can make. For spouses or civil partners, it is an amount that is reasonable for a spouse to have. For others, it is such a financial provision as the court feels reasonable for the person to get for their maintenance.
Although the right to bring a claim under the law exists, it is expensive to bring a claim, and this can deter claimants. The cost of bringing a claim, coupled with the uncertainty makes it quite risky. Even if the court decides in their favour, they do not know what they will be awarded because it is up to the court to decide what “reasonable provision” means in their case and it has to take all the circumstances into account, including the circumstances of those who were provided for in the will. There is no actual formula for the award, so it is difficult to make any firm predictions about what they will get if they are successful. It also depends on the size of the estate.
There isn’t even a clear pattern from the cases that have gone before the courts. The court will make its decision, taking all the circumstances into account, whether any provision should be made for them and, if so, what’s reasonable in the circumstances. Even if the court decides that some award should be made for them from the estate, the amount may not be worth a great deal and may not give them all the things they want.
Who has the right to bring a claim?
Those who have a right to bring a claim against your estate for reasonable provision are:
- Your spouse or civil partner
- Your former spouse or civil partner who has not remarried or entered into another civil partnership
- Your partner if he or she was living with you as husband/wife for the last two years of your life
- Your children
- Persons you were maintaining (dependants)
- Those you have treated as children of the family (such as stepchildren)
It is worth being aware of this category of potential claimants because it is generally best to provide for them and reduce the likelihood of a claim being brought against your estate.
If you choose not to make any provisions for any of these people in your will, you should take the precaution of saying why not. You can make a statement about it in your will or in a separate letter addressed to your executors explaining the situation. It may be that you’ve made quite a substantial provision for the person in your lifetime, such as an adult child that you’ve bought a house for, or it could be a former spouse where there was a clean-break divorce settlement. It may even be someone from whom you are estranged, such as your son you haven’t spoken to in 10 years.
In the event of a claim, your statement will be part of what the court may consider when deciding whether that person should have any or further provision from your estate. Remember, the court will take all the circumstances into account. You should defend your decision by leaving a letter. You should also take advice when writing the letter so that you include all the relevant facts that could have a bearing on the court’s decision.
Being aware of those people who qualify allows you to plan to provide for them in advance so that you can avoid disruption to the administration of your estate by such people bringing claims to court.
Contact us for advice in making your will if you are concerned about possible challenges. Also, please get in touch if you are considering making a claim and you want to assess your chances for a fixed fee.