Claiming against the Estate of a Deceased Person

4th March 2015
Claiming against the Estate of a Deceased Person image

Claiming against an Estate of a Deceased Person

Introduction

If a family member dies and either as a result of the deceased’s Will or the intestacy rules (which govern who gets what when a person dies without leaving a valid Will) you do not get an inheritance or an inheritance that you consider to be insufficient, you might still be able to make a claim/further claim against the estate of that deceased person under the Inheritance (Provision for Family and Dependants) Act 1975 (“the Act”).

The Grounds for the Claim

There is just one ground upon which you can make such a claim namely:-

“That the disposition of the deceased’s estate effected by his Will or the law relating to intestacy or the combination of his Will and that law, is not such as to make reasonable financial provision for the applicant.”

The Act does provide some guidance on “reasonable financial provision”.

Reasonable Financial Provision

Expectations of reasonable financial provision will depend upon the type of applicant.

  1. Spouse

Unless at the date of death there was in force a separation order and the separation was continuing, the standard of reasonable financial provision shall be:-

“Such financial provision as it would be reasonable in all the circumstances of the case for a husband or wife to receive, whether or not that provision is required for his or her maintenance.”

If there is a separation order in force and separation is continuing, then the standard will be:-

“Such financial provision as it would be reasonable in all the circumstances of the case for the applicant to receive for his maintenance.”

When the deceased and the survivor were engaged in matrimonial proceedings that have not resulted in an order for ancillary relief at the date of death (i.e. financial issues were outstanding) and an application is made for reasonable provision within 12 months of that death, the Court will in effect entirely ignore the fact that there was a divorce.

This will not apply to a separation order situation unless, at the date of death, the order was in force and the separation was continuing.

  1. Civil Partner

Similar provisions apply in respect of these applicants as per spouses.

  1. Other Applicants

The standard here is the same as that for a spouse/civil partner with a separation order, namely, such provisions as would be reasonable in all the circumstances of the case for the applicant to receive for their maintenance.

Categories of possible applicants here include former spouse/civil partner who has remained un-married/not in a civil partnership, a co-habitee, a person who prior to the date of the death of the deceased was wholly or partly maintained by the deceased (and not necessarily a family member), a child of the deceased and any other child treated by the deceased as a child of the family in relation to a marriage/civil partnership.

Factors to be considered

In determining an application, the Court must consider factors which may vary according to the status of the applicant.  There are some common factors as follows:-

(i)         The applicant’s future financial needs and resources (including earning capacity).

(ii)         The future financial needs and resources (including earning capacity) of any other applicant.

(iii)        The future financial needs and resources of any beneficiary (including earning capacity).

(iv)        The deceased’s obligations and responsibilities towards any applicant or beneficiary.

(v)         The size and nature of the deceased’s net estate.

(vi)        The physical and/or mental condition of the applicant or any beneficiary.

(vii)       Any other matter the Court considers relevant (including the conduct of any party).

If you wish to consider making a claim against an estate, or you are a beneficiary or executor in effect facing a claim from another party then please contact Daven Nagen on 01775 722261 or email daven.naghen@maplessolicitors.com or call in or visit our offices at 23 New  Road Spalding Lincolnshire PE11 1DH.

If you want advice in making your Will in order to reduce or eliminate the risk of such claims being made against your estate then please either contact one the Wills, Probate & Trusts Team:

Jane Mawer on 01775 722261 or email jane.mawer@maplessolicitors.com

Faye Blair on 01775 722261 or email faye.blair@maplessolicitors.com 

Jamie Dobbs on 01775 722261 or email jamie.dobbs@maplessolicitors.com or visit our offices at 23 New Road Spalding Lincolnshire PE11 1DH.


Property Protection Trusts image

Property Protection Trusts

Property Protection Trusts and Protecting your Property from Care Home Fees

Many people are concerned that as they get older, they may need to move into a care home and the cost of such care can be very expensive. Many people are therefore looking for ways to protect their assets from care home fees.

In recent years “Property Protection Trusts” have been promoted as being the failsafe, guaranteed way of protecting your property from care home fees. Many companies promoting such trusts are unregulated and their products such as Property Protection Trusts are being promoted and sold by sometimes nothing more than a very persuasive salesperson.

It is likely that your home is your largest asset and you should be very cautious before making any decisions with regard to your largest asset and the roof over your head. Indeed a Property Protection Trust may not even protect your home from being sold to pay for care fees or could cause tax implications and therefore it is very important that you take advice from one of our lawyers before making any decisions with regard to such Property Protection Trusts.

These Trusts can be brought to people’s attention either from cold calling, arranging home visits and sometimes even from kiosks or stalls in public areas. The people “selling” Property Protection Trusts to you can be very persuasive and may not be providing you with correct information or all of the information you should have before making a decision regarding your property. Their fees are often excessive.

In some cases, these companies even offer Lasting Powers of Attorney at what they claim to be a reduced rate. People should take caution as these “cheap” Lasting Powers of Attorney often result in being more expensive than our own charges and the companies involved often do not provide the correct advice or the necessary advice for you.

If you have been contacted by someone discussing Property Protection Trusts and would like to discuss this further with one of the lawyers in the Wills and Probate Department of this firm or you have already created a Property Protection Trust but would like to take further advice then please contact one of our lawyers in the Wills and Probate Department:-

Jane Mawer- jane.mawer@maplessolicitors.com
Jamie Dobbs- jamie.dobbs@maplessolicitors.com
Faye Blair- faye.blair@maplessolcitors.com

Or telephone the office 01775 722261 and ask to speak with one of the team.

Read More

Testimonials

Gemma Mayer LLB

"I would highly recommend Maples Solicitors, especially Gemma Mayer, for any conveyancing work. The level of support and professionalism was excellent at all times. I also felt if I needed to ask or clarify anything that it was not an issue. Buying and selling a house is stressful enough, but Gemma helped me through it step by step."

Anita Toal LLB BA

"I think you are brilliant. You can use my comments above. You are efficient, friendly and quite clearly very good at what you do. Mainly you don’t leave people hanging around too long for." "So easy to talk to her and she understood what I wanted. She put me at ease and I cant thank her enough"

Daven Naghen LLB

"Daven provided an excellent service, from attending the first interview with me to the final court appearance. He filled me full of confidence that he would defend me to which he did and come out with an excellent outcome in view of my position that I had put myself in."

Faye Blair LLB

Faye was excellent, sensitive and acted very well to the time constraints we faced. Great service and dealt with compassion at such sad times made the process less painful very professional.

Jamie Dobbs ACILEx

Over the last forty years I have cause to deal with many law firms both in a personal and professional capacity, including some ‘top’ London Companies. In all of those dealings I have never found anyone as proactive and so willing to offer help and advice as Jamie Dobbs. During the last two years Jamie guided my parents through the completion of Lasting Powers of Attorney. Helped myself with the use of the LPA and recently dealing with Probate and Estate Administration following their death.

Mike Pepper MA

Mike Pepper gave us excellent advice. He was always most helpful and accommodating giving lucid explanations every step of the way. Thank you Mike.

Claire Smith FCILEx

Claire Smith has been amazing in every way. I highly recommend her and I am so grateful for all her help. She’s professional on all levels, reliable, extremely organised and I will be recommending her to everyone. I’m very lucky to have had her representing me and I can’t thank her enough. She is an asset to Maples. Thanks so much Claire!