Update your will

It is possible for someone who has been left out of a deceased person's will to make a claim for 'reasonable financial provision'.

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It is possible for someone who has been left out of a deceased person’s will to make a claim for ‘reasonable financial provision’ under the Inheritance (Provision for Family and Dependants) Act 1975 (the 1975 Act).

Not just anyone can claim under the 1975 Act. If the claim is because they have been left out of a will, the claimant might be entitled to such reasonable financial provision as is necessity for their maintenance, to the extent that the estate can afford it. If the claimant is a spouse or civil partner, they are entitled to more if successful.

A recent case considered the situation where the most recent will of the deceased was made in 1986. In that will, the deceased left part of his estate to his wife. The deceased and his wife separated but did not obtain a divorce. The deceased set up home with his new partner in 2009 with whom he owned a house – but their co-ownership was on the basis that his share followed the terms of his will and did not pass to his partner. Accordingly, she was entitled to nothing upon his death. The deceased’s partner made an application under the 1975 Act.

The matter went to appeal on the basis that the original judge had not properly considered all of the assets of the deceased’s partner when deciding what she might be entitled to. The result of the claim was that the deceased’s partner received an interest in the property that she co-owned with the deceased; but the deceased’s wife also benefited.

The case highlights the delicate balancing act that a court has to carry out in this sort of case; especially where the assets of the deceased are somewhat limited.

However, the major point to come out of the case is a timely reminder of the need to regularly review and update your will. There were some 28 years between the making of the will and obtaining the Grant of Probate in the above case. The deceased had parted from his wife and had a new partner and yet still did not get around to updating his will before he died.

If you want to review or discuss your will, contact us.

Members: Simon Shaw, Elizabeth Rimell and Janice Leyland.
All members of Scaiff LLP are solicitors of England and Wales. Individuals referred to in this website and elsewhere as 'partners' are members of Scaiff LLP or an employee or consultant with equivalent standing and qualifications.
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