Challenging a Will: when insufficient provision has been made for an individual

  • Posted

By Lauren Mackenzie, Senior solicitor specialising in Dispute Resolution and Mediation.

As indicated in the previous blog on this topic there are two scenarios in which a Will can be challenged. This article deals with the second of those, namely that insufficient provision has been made for an individual under the terms of a Testator’s Will.

The legislation concerning such action is The Inheritance (Provision for Family and Dependants) Act 1975. This sets out who can bring claims, the circumstances when claims may be dismissed, and the tight time limits for any such application.

In order that a claim can be brought it is essential that the applicant falls within one of the categories are set out in section 1(1) of the 1975 Act. These are:

  1. The deceased’s spouse
  2. The deceased’s civil partner
  3. A former spouse or civil partner of the deceased, as long as he or she did not remarry or form another civil partnership before the death of the Testator
  4. An individual who has lived with the deceased “as husband and wife” for the whole of the period of two years or more immediately prior to the death of the deceased
  5. A child of the deceased, which is widely interpreted
  6. A person treated as a child of the family
  7. Anybody else, not within the categories referred to already, who is being maintained wholly or partly by the deceased

The level of any successful claim will be dependent upon the category into which an applicant falls and may be limited to just maintenance, or, in the case of a spouse or civil partner, include reasonable financial provision.

In the next article we will deal with the criteria that the Court take into account when considering the merits of any claim under the Inheritance (Provision for Family and Dependants) Act 1975.

Please note the contents of this blog are given for information only and must not be relied upon. Legal advice should always be sought in relation to specific circumstances.