Partner, Eleanor Stenson provides a practical yet detailed session on ‘Litigating a Claim under the 1975 Act’
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When someone dies ‘intestate’, it means that they died without leaving a valid will. It might be that they never made a will, or that the one they did make wasn’t properly written.
If someone makes a will but it is not legally valid, the rules of intestacy decide how the estate will be shared out, not the wishes expressed in the will.
When someone dies without a will, their money, possessions and other assets are distributed to surviving spouses, direct descendants, or other close relatives if they had no children.
The rules of intestacy are as follows:
Married partners or civil partners inherit under the rules of intestacy only if they are actually married or in a civil partnership at the time of death. So if you are divorced or if your civil partnership has been legally ended, you can’t inherit under the rules of intestacy.
If there are no children or other direct descendants, they inherit all of the money and assets.
If there are surviving children, grandchildren or great grandchildren of the person who died, the spouse or partner will inherit:
The other half of the remaining estate is shared out equally among the children or other direct descendants.
If there is no surviving partner, the children inherit the whole estate. If there are two or more children, the estate will be divided equally between them.
If there is a surviving partner, children inherit one half of the value of the estate above £322,000. For example, if the estate is £422,000, the first £322,000 goes to the spouse or partner, leaving £100,000. Half of this also goes to the spouse or partner, leaving £50,000 remaining which goes to the children. If there are two or more children, they inherit this in equal shares.
If there are no spouses, civil partners or children, the estate is divided among grandchildren, great-grandchildren, or other close relatives. See the diagram below for how the estate is divided in this case.
Often, the rules of intestacy do not work for the families left behind. That might be because there are cohabitees or step children who are ignored, or perhaps there are children under 18 who have inherited parts of the estate that the surviving spouse needs (particularly with shares in a house). If this is the case, there are different options.
Whilst Intestacy Rules are strict, it is possible to change the effect of them if ALL the beneficiaries who are entitled agree and consent to change how the estate is divided to a different arrangement.
This agreement to vary needs to be dealt with by a legal document known as a Deed of Variation. It is important to take legal advice in these circumstances. We can help draw up a deed of variation to ensure it is legally binding.
If a deed of variation is not possible because the parties do not agree, then it may be possible to challenge the distribution of inheritance under the 1975 Act. The 1975 Act gives the courts power to vary the terms of intestacy to provide reasonable financial provision to a qualifying person. For example, if the rules of intestacy mean that a person who was financially dependent on the deceased no longer has that support, the courts can assess the needs of that person and change the inheritance arrangements to ensure they are provided for.
Challenging the rules of intestacy under the 1975 Act requires expert legal assistance to assess the circumstances, gather the evidence and make the application. We can provide the legal assistance you need to challenge the inheritance arrangements under the 1975 Act.
A person who has written a will is known as a ‘Testator’. UK law recognises that a person has the right to decide who should receive their assets after they die, and this is known as ‘Testamentary freedom’.
If a person dies without leaving a will, their estate is described as ‘intestate’, and their money and possessions are distributed to their surviving spouses or direct descendants according to the ‘rules of intestacy’.
Even though testamentary freedom exists in the UK, in certain circumstances it is possible to challenge how a person decided to distribute their assets.
The Inheritance (Provision for Family & Dependants) Act 1975, or “”1975 Act”” for short, was created to allow certain people associated with a deceased person to bring a claim against their estate if they had not been adequately provided for.
If the persons claim is successful, the courts can rule that the deceased persons estate should be distributed differently to the terms of their Will.
People often question the fairness of challenging how a person decided to distribute their assets. The 1975 Act was created so people who were dependant financially on the deceased person, continue to be provided for.
The courts can change the distribution of a persons estate where there is judged to be a failure to make reasonable financial provision for these dependent people. If they relied on this financial support to cover the cost of living, the 1975 ensures they continue, where possible, to receive that financial support.
When challenging inheritance arrangements under the 1975 Act, an applicant must demonstrate that the provision actually made (which might be no provision at all) is not reasonable. The courts will only award provision that is reasonably necessary for the maintenance of the applicant. The reasonable standard means the applicant should be able to live ‘at neither a luxurious nor poverty stricken level’.
The courts will assess:
To challenge inheritance arrangements under the 1975 Act, the applicant must provide a detailed case using the above factors to present an argument as to why the estate should provide reasonable provision for them, and why in the current circumstances it does not.
Individuals who can make a claim include:
Surviving spouses or civil partners can claim more under the 1975 Act, because the court can take into account the standard and style of living and reasonable expectations of the applicant, including what they might have expected to get if the relationship had ended with divorce instead of death, and that may well exceed what they need for their day to day maintenance.
Merit is a legal term referring to the strength or weakness of a legal case. The Wikipedia definition is:
“In law, merits are the inherent rights and wrongs of a legal case, absent of any emotional or technical bias”.
The exact meaning can be difficult to define for people with no legal experience, but essentially, the more merit the stronger a case will be, and the more likelihood there is of a successful outcome. When a judgement, decision, or ruling is made, it is based on the cases merit.
An example of merit relating to inheritance disputes could be explained with the child of someone who has died. If it is an adult child with their own established life and income, living independently from their parent, they may well have legal standing, but they will have far less merit than a child under 18 who lived in the property of the deceased person, and who relied completely on their financial support.
The adult child with their own income would be judged by the courts less favourably than the younger, more dependent child. Any financial award from the courts would likely be much less for the older child, and more for the child under 18.
Another example could be a spouse. A person who was married and living with the deceased person for two years would have much less merit than a person who had been married and living together for thirty years.
Inheritance disputes vary widely, and the merit of any case requires careful examination by legal professionals. Based on the answers to your questions, your outcome report breaks down the key issues relating to your circumstances, and provides an indication of the likely strengths and weaknesses of each issue.
The strengths and weaknesses of each issue are assessed with a traffic light system. Green for circumstances that would likely strengthen the merit of your case, red for circumstances that would weaken the merit, and yellow for circumstances that may be unclear, and would require further assessment of the details.
Mediation is a way of sorting any differences between disputing parties, with the help of a neutral third person who won’t take sides. The third person is called a mediator. They can help you reach an agreement about issues with inheritance.
Mediation provides a private forum in which the disputing parties can better understand each other’s position and then work together with the assistance of the mediator to explore options for settling the dispute.
To avoid costly court hearings, we strongly believe in resolving inheritance disputes through mediation. 99% of our cases are resolved without any form of court hearing.
On the day of a mediation, the disputing parties attend with their solicitors and work with the help of the mediator to work towards a negotiated settlement of the dispute.
Traditionally, mediations took place at a law firm, barrister’s chambers, or a neutral venue such as a hotel with meeting rooms. However, since the Covid pandemic, mediations can take place remotely.
Disputing parties typically remain in separate rooms throughout the day, while the mediator will shuttle between the rooms throughout the day with the aim of narrowing the issues in dispute and ultimately guiding the parties towards a binding settlement which they can live with.
You do not have to see the other parties during a mediation, but occasionally parties will ask to meet to perhaps try and rebuild relationships at the end of the day and after a settlement is reached, however this is not compulsory. Sometimes there will be a “Solicitors only” meeting between Solicitors, if the mediator believes that would assist in reaching a settlement.
Legal costs and funding legal action can be a significant concern for people facing inheritance disputes. There are a range of funding options available depending on the circumstances of your situation.
We believe in taking a responsible approach to pursuing legal action, and these options are offered based on careful assessment of your case. We do not proceed with legal action unless we are confident the financial gain is worth the legal costs.
With deferred payment, you are not invoiced until a pre-defined point in your case; for example, when settlement is reached or a court order has been obtained. Once the pre-defined point has been reached, we will have a much clearer idea of the likelihood of success, and the size of any potential financial settlement or award.
We consider this approach where there are no viable alternatives for our client and the case is appropriate. We do not proceed with legal action unless we are confident the financial gain is worth the legal costs, and as such, this option is only offered if there is a high likelihood of a successful outcome that is worth the estimated legal costs.
Litigation funding is when the legal costs are covered with a finance agreement. Litigation funders will look at the facts of the case, the merits and what a ‘worst case scenario’ might look like. If approved, the litigation funder will set a fund or confirm the total amount which can be advanced from your inheritance.
We are the UK’s only inheritance dispute specialists, with over 100 years combined experience in resolving disputes among families.
Its all we do.
We pride ourselves on being trustworthy and transparent throughout any legal action, and provide our clients with all the information and expertise they need to make the best decisions.
We offer a free consultation and assessment of your situation, with a full expert analysis of the facts before we proceed with any legal action.
On completion of the form your details will be sent straight through to our triage team who will assess your circumstances free of charge and contact you with advice on the best course of action for your situation. Alternatively you can call IDR directly on 0330 175 9912.
Free of charge:
There is no obligation to proceed with any legal action following your consultation. We understand the sensitive nature of family disputes, and only recommend proceeding if it is the right thing for you.
If you do decide to proceed with a legal dispute, we will support you and keep you fully informed every step of the way. We offer complete transparency at every stage, and we only proceed with legal action if we are confident of a successful outcome.
“A safe pair of hands…” Helydd Wyn, family solicitor.
The first steps are agreeing on an appropriate course of action, outlining the costs, establishing which funding options are applicable, and signing an agreement to proceed.
Legal representation varies from case to case based on the circumstances, but typically begins with gathering evidence and/or communicating with other parties. From this point, we will keep you informed at every step of the way, and involve you in all decisions throughout the legal process.
When pursuing action through the courts, costs can quickly add up, so we firmly believe in resolving disputes through mediation. 99% of our case are resolved out of court.
We are the only firm in the UK specialising in contentious probate, and we have over 100 years combined experience in settling inheritance disputes.
Its all we do.
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On completion of the form you can request a call back from our legal experts within 24 hours of receiving your details.
Legal standing is the right to take legal action in a court of law. It is known as ‘Locus Standi’ in the legal profession.
In other words, if you want to take legal action and appear in court, you have to meet the required conditions defined in law.
If these conditions are met, you have legal standing and can take legal action.
If you want to dispute inheritance arrangements, you have to demonstrate your legal standing, and meet the conditions relevant to inheritance disputes.
If you do not meet these conditions, you cannot legally dispute the inheritance arrangements.
When representing our clients for inheritance disputes, the first thing we need to do is establish whether they have legal standing. If they do not, they cannot take legal action.
To do this, we look at different circumstances relating to their relationship to the person who has died. These circumstances might include:
These are just some of the main issues that dictate whether you have legal standing. This form will give you an immediate answer on your rights to legally dispute inheritance arrangements based on your answers to the questions.
In some circumstances it may be unclear whether you have legal standing, so your outcome report will be ‘maybe’. In these cases, your circumstances would need further investigation by legal professionals to establish whether you have the right to raise a dispute.
Legal advice is strongly advised when responding to claim letters, and if the charity needs to protect its rightful income, legal costs can have an impact in decision making.
A balance needs to be found between legal costs, moral aspects, and charity income.
At IDR Law, we have years of experience taking the right course of action to protect your income, negotiate the best resolution, and stay out of court.
Identifying the claim
When you receive a claim letter, you will want to try and understand the situation, and establish the validity of the claim from the details in the letter. In order to do this, you need to understand the legal grounds on which the claim is being made.
Claim letters can vary widely in detail. Letters from lay-people such as beneficiaries or family members could have no grounds detailed, and they may not have all the details themselves. They may include a plethora of allegations that are entirely irrelevant to their claim!
If the letter is from a solicitor or legal representative, we would expect there to be detailed grounds on which the claim is based, although this is not always the case.
Further correspondence
If the first letter does not spell out the grounds, there can often be further correspondence before the claim can be fully understood. There might be several letters back-and-to before the nature of the claim is fully spelled out.
As you learn more details of the claim you can come back here to complete the claim checker assessment and gain a better understanding of the claim.
‘Wills do sometimes have more than one charity. Sometimes in cases where they have no close family they might choose several charities’
Do you communicate with those other charites?
‘Yes we absolutely do. We work together to avoid duplicating costs. Its a lot more beneficial if we are able to agree the way forward’.
‘There might be times when there is a conflict of interest, in which case we have to take our own advice, but if we can reach an agreement and coordinate with our fellow beneficiaries then we absolutely would do’.
Would you use the same law firm?
‘Yes, if there is multiple charities we would usually agree on one charity being the lead to coordinate things with the solicitor, again to cut down on costs’.
Martin Holdsworth from IDR Law adds…
‘Particularly if its a residuary. If five charities get an equal share of the residuary, then a claim will effect them all. So they are all in it together, and importantly, they have all got the same interests. As a result, they tend to instruct one law firm to represent the group’.
If there are multiple charities included in the contested will, IDR law can represent all affected charities to provide the best possible outcomes for all parties.
The time limit to bring a claim under the Inheritance (Provision for Family and Dependants) Act 1975 (the 1975 Act) is 6 months from the date of issuing of the grant of probate or letters of administration. Once this 6-month period has expired it is necessary to apply for the court’s permission in order to bring a claim.
After the expiry of the 6-month period Personal Representatives are able to distribute any part of the estate without having to take into account the possibility of an application to the courts for an order for permission to bring a claim under the 1975 Act. This means that they cannot be liable for carrying out their duties in distributing any part of the estate after the 6 months have passed.
There are a number of factors a court will consider in exercising its discretion under section 4 of the 1975 Act to allow an out of time claim to be brought. These factors were initially listed in the case of Re Salmon [1981] and more recently confirmed in Berger v Berger [2013].
The factors a court will consider are as follows:
Case law suggests that courts have unfettered discretion in deciding on such applications, allowing them to weigh up what is just and reasonable on a case-by-case basis. In Begum v Ahmed [2019] the Court of Appeal granted permission to a late claim on the basis that it was a strong claim, there was a lack of alternative remedy, and the claim would cause no real prejudice to other beneficiaries. The court can again be seen to exercise its discretion with reference to a number of the factors identified in Salmon in the case of Cowan v Foreman [2019]. Here, the strength of the claim, lack of prejudice to other beneficiaries and justification for delay all contributed to the final decision to allow the claim. A very similar approach was adopted in Re Bhusate [2020] where the Deputy Judge confirmed that under section 4 of the 1975 Act the court has the power to exercise uninhibited discretion to allow claims where it is just to do so. This approach was once again followed in Kaur v Bolina 2022, showing that courts will be inclined to allow an out of time claim where they are satisfied with regards to the above-mentioned factors that it is reasonable and proper to do so.However, it must be of note that strong evidence is still required to support the application and satisfy the given factors. Zarrinkhat v Kamal [2013] and Berger v Berger [2013] are examples of cases where a lack of credible and substantial evidence in providing a reason for the lateness of the application led to the court denying permission to the applicants to pursue their potential claims.
The simple answer to this question is no. Nonetheless, the later it gets the more difficult it may be to evidence a reason for the lateness of the application, and the more likely it may be that the administration of the estate has already begun or indeed ended. The court will of course also take into account the promptness in which the applicant sought permission, but this being only one factor, should it be considered just and reasonable on weighing up the reason for lateness, other remedies and the progression of administration of the estate to allow the claim then the court still has the discretion to do so. A good example of this is the prior mentioned case of Re Bhusate where the application was made over 25 years late.
1. Where an individual has concerns in relation to an estate they are able to lodge a Caveat against the Estate. This will prevent the Personal Representative from obtaining the Grant and therefore from distributing estate assets.
2. To lodge a Caveat, the individual must complete a EX160 and submit this to the Probate Registry.
3. It is important to keep a record of when the Caveat was lodged as they expire after 6 months.
4. It is important to consider whether the Caveat is justified. Typically, they are not typically justified in relation to
Inheritance (Provision for Family or Dependents) 1975 Act Claims.
5. Keep a record of the Caveat Reference Number.
6. Once the Caveat is lodged, proactive steps should be taken to the investigation of any potential claims.
‘The charity commission governs protocol in these situations’. [RG]
The charity commission guidance on whether to settle states that charities are ‘duty bound to defend their gifts’. [PB]
‘in most cases, you with your charity will be compelled to defend a gift’. [PB]
But deciding whether to settle is more about finding a balance, as Paul Brown of Legacy Link described:
‘I tend to view claims as objectively as possible. You have to kind of look at it and say ‘is it the right thing to do for the charity to fight this claim?’
‘because we are compelled to protect our charitable funds, and any gift is considered charitable funds, so [income] is a component in the calculation, but it’s not the be-all and end-all’.
‘Its not all about the money, its about moral judgements. A much better way to define it is to say ‘what is the right thing to do for the charity’?
‘Is it objectively the right thing to do for the charity to challenge to fight this claim?
‘Are there any other reasons why you shouldn’t?’
‘And then PR, considering what this looks from the outside. Through what lens does this feel like it’s the right thing which charity is doing?’
‘So there is lots of very subjective discussion’.
Rebecca Gray from Age UK said:
‘We do have some cases where we will know through experience that the claim is quite weak, but it still might be something we need to address, and potentially settle…’
‘Because we have to be aware of what it would look like if someone went to [a newspaper] and said ‘[The charity] wouldn’t let me have this, and I’m also [a vulnerable person]…’
‘[So we are] taking in that PR issue, as well as how successful they may be with any claim’.
So it’s a balance.
Relative legal costs are also part of that balance, and any charity naturally wants to limit their expenses disputing a claim.
Benjamin Williams from Cancer Research UK said:
‘Charities will very often, as should any sane person, try and stay out of court.
‘You tend to think its unlikely this will go to court, but we’re definitely going to be losing something here’.
‘We’re going to have to offer this person some money to go away because they’re clearly so aggrieved, and they’re not going anywhere’.
Paul Brown from Legacy Link said:
‘The vast majority of claims are negotiated out. The case where the courts cost so much they lost all the money in the estate, is the rarity rather than the norm. Ive settled dozens on the footsteps of the court on the day of the hearing’.
So whats the worst that can happen?
‘It depends how you define ‘worst’. From a financial point of view there is the cost – their gift might be completely lost if a claim is successful. Actually probably more dangerous from a charities side is the legal and PR implications of handling a claim badly. The worst case is ending up in court – I would say if you have ended up in court you have failed’. [PB]
For smaller legacy gifts, the legal costs might also outweigh the value of the lost income.
‘If it’s a small pecuniary legacy we probably wouldn’t get involved, but if there is a residuary matter, we almost definitely would get involved’.
‘If it’s say, like a 5 Grand Legacy, a 5 grand pecuniary, I don’t think we would even argue to be honest with you’.
‘If the legacy was over 5 grand that might change’.
[RG had a thing to say about this????]
So it’s a balance, but what is important is what is right for all parties…
‘Its not all about the money, its about moral judgements’. [PB]
As the only contentious probate firm in the UK, we have over 100 years combined experience making these judgements.
Finding the right balance is where we excel.
Contact our triage team for the support you need right now [worded better].
A Letter of Claim (sometimes referred to as a ‘Letter Before Action’) is a letter sent by the Claimant to the Defendant to put the Defendant on notice that Court proceedings may potentially begin to be brought against them.
In the context of the Civil Procedure Rules 1998 (CPR), which govern civil litigation in England and Wales, the Letter of Claim is an essential step of the pre-action process. The CPR encourages parties to initially try to resolve their disputes without immediately resorting to formal court proceedings. The Letter of Claim should, ideally, allow the parties to exchange necessary information to understand each other’s position, allowing for a better foundation on which to proceed and try to resolve the dispute.
A Letter of Claim should:
A well worded Letter of Claim, clearly setting out the Claimant’s position and expectations, can in some cases lead to a very quick resolution of the dispute, avoiding the need for costly litigation.
In reality, they can vary widely in detail. Letters from lay-people such as beneficiaries or family members could have no grounds detailed, and they may not have all the details themselves. They may include a plethora of allegations that are entirely irrelevant to their claim! often there will be further correspondence before the claim can be fully understood.
[Paul Brown article on scatter-guns]
Do not ignore the Letter of Claim. You must acknowledge receipt of the Letter of Claim within 14 days. This does not necessarily mean you have to respond within 14 days, but it will be useful to keep careful note of the deadline for responding if set out in the letter as to not miss it. If no deadline is set out on the letter, it may be worth reaching out to the Claimant to try and agree on such deadline, otherwise try to respond to simple claims within 14 days of receipt and more complex ones within 3 months.
In preparation for your response, try to collect all evidence, documents and communications which are relevant to the dispute. It is important to avoid being one-sided during this process, as to assess your position you will need to be aware of all potential evidence which may have an effect on the outcome of the dispute, whether it is positive or negative. Be very cautious about creating any new evidence or making any concessions or admissions which may become disclosable in litigation and harm your case.
On having collated all the necessary information on the case, and having carefully evaluated the claim and its merits, you will be in a much stronger position to prepare an informed response to the Letter of Claim. A response letter should include the following:
Once the Claimant has received the response and is aware of the position you are taking the next pre-action steps can be taken to proceed in trying to resolve the dispute.
Always take legal advice.
Contact IDR Law
Claimants may send through evidence to support their claim.
This may include:
The exact point at which Personal Representatives (PRs) are expected to notify a charity beneficiary of entitlement to a legacy under a will is not stipulated by the law. It is for this reason that PRs may contact charities concerning their entitlement at any point in time, this may be very soon after death, much later down the line, or indeed not at all.
more reliable option for charities is to subscribe to a legacy notification company (such as Smee and Ford), which scan thousands of wills every week in order to alert charities as soon as possible of any entitlements.
Once PRs have received a grant of probate the will becomes a public document which can be accessed freely. This allows legacy notification companies, usually through the use of high-end data collection technology, to scan through these wills and identify under which ones a charity is entitled to a legacy as well as the details of such entitlement.
The company will then proceed to notify the charity of their entitlement under the will, allowing the charity to initiate contact with the PRs, if there has not yet been any, to gain a better understanding of the progress of the distribution of the estate.
Smee and Ford began informing charities of bequests in 1972. Since then, the company has grown rapidly, collecting full data on UK legacy giving to all charities from 2012 onwards. Recently they created the Legacy Analysis Portal where clients can view dashboards of information about their legacy income and access their notifications.
The company’s Named Legacy Reports let charities know if they have been named in a will within weeks of it passing through probate. It contains all the details from the issued grant of probate including the name and address of both the legator and the executors, the gross and net estate values, full bequest information, any conditions relating to the will and details of other charitable beneficiaries. Charity beneficiaries can access notifications and download a pdf. copy in the Legacy Analysis Portal. Further to this if the legator is in England or Wales the charity will also receive a copy of the will and the grant of probate.
They also offer a discretionary legacy service, which notify charities of their potential claim to a discretionary legacy, allowing them to approach PRs with a targeted plea.
