Defending Inheritance (Provision for Family and Dependants) Act 1975 Claims

Why might I need to defend a claim under the 1975 Act?

A disgruntled beneficiary or non-beneficiary may bring a claim against an estate where they are dissatisfied at having been excluded from a will or where they think insufficient provision has been made for them. An individual may bring a claim whether the deceased made a will or whether they died intestate (without having made a will).

The claim would be for reasonable financial provision from the deceased’s estate and a court will consider several factors when deciding whether to make an award to a potential claimant, which would reduce the share which the existing beneficiaries (under a will or on an intestacy) would receive.

What should you be considering when presented with a Letter of Claim?

You should pay close attention to any deadlines which the potential claimant has given you to respond. Whilst it is possible to request more time to respond to a Letter of Claim, this may not be granted and the claimant could issue their claim against you without further notice.

You should consult a solicitor as soon as possible, as time will be required for them to advise you on your legal position, for you to consider that advice, and for your solicitor to prepare a Letter of Response if you wish to do so.

What factors will a solicitor be considering when reviewing the Letter of Claim?

Your solicitor will be paying close attention to the following factors when reviewing the Letter of Claim:

1. Whether the potential claimant is within the designated limitation period to bring a claim. If the claimant is out of time to bring a claim, they will need to apply to the court for permission to bring the claim out of time. Permission is not always granted, but your solicitor will be considering potential arguments to advance as to why the claimant should not be allowed to issue their claim out of time.
2. Whether the potential claimant is eligible to bring a claim. The 1975 Act provides a list of eligible claimants. If the claimant is not eligible to bring a claim, then your solicitor will review the basis upon which they are not eligible with a view to stopping the claim before court proceedings are issued and further costs are incurred.
3. The claimant’s financial position. The Court will consider (amongst other factors) the claimant’s financial position. Your solicitor will test the evidence which the claimant has produced to support what they say about their financial circumstances.
4. Whether (if you are named as a beneficiary) you have any competing financial needs, which could limit the value of an award made to the claimant.

There are certain categories of people who can bring a claim under this legislation. However. However just because they are eligible, it does not automatically mean that they will be entitled to part or all of the Estate.

You should consider whether the proposed claimant has disclosed information about their financial circumstances with supporting evidence, such as bank statements.

You should seek advice from a specialist contentious probate solicitor who will be able to review the Letter of Claim and provide you with some advice on the strength of the claim and the steps you should take to defend it.

I am an Executor, can I use the funds within the estate to pay my solicitor?

Executors can sometimes be reimbursed for their legal costs from the deceased’s estate.

This much depends on whether you are adopting a neutral position, or whether you choose to actively defend the dispute.

Be careful – if you choose to actively defend the dispute, you may lose your right to be reimbursed from the Estate. It is important that you seek legal advice before you take any action which could harm your right to recover your costs.

How will costs be dealt with?

If you are a beneficiary seeking to defend a claim, and you are successful in doing so, a court is likely to make an order that the unsuccessful claimant pays your legal fees. If you are unsuccessful, an order may be made that you pay the claimant’s fees. Costs are at the discretion of the court; however, and factors such as your conduct during the proceedings can be taken into account..

What if II cannot afford my legal fees upfront?

Where you are named as a beneficiary or inherit under the Intestacy Rules, some solicitors may agree to defer their fees until such time as the estate has been distributed. Their costs will be taken from any funds you are due to receive, which will give you some peace of mind during course of the proceedings.