• While we may try our best to provide for all our loved ones when we die, there are occasions when those we leave behind do not feel that they have been properly taken care of. This can result in claims made under the Inheritance (Provision for Family and Dependants) Act 1975 (the “Act”) by one or more of the following:

    1. a spouse or civil partner[AW1]
    2. a former spouse or former civil partner who has not remarried
    3. a child (including adult children)
    4. a cohabitee who was living with the deceased in the two years prior to their death as if they were a married couple or civil partners, or
    5. any person who immediately before the death was being maintained by the deceased.

    Many cases are brought by spouses, particularly where there are second marriages. Often in these cases, provision has been made for children from previous relationships, but the current spouse is left with insufficient financial provision to maintain the standard of living to which they are accustomed, or perhaps even to meet their daily expenses.  If you’ve remarried, it’s important to update your Will, to ensure your wishes will be met.

    What is reasonable financial provision?

    Broadly speaking, for a claimant who is a spouse or civil partner, the level of provision is based on what is reasonable for them to receive in all the circumstances of the case, whether or not it is needed for maintenance. For any other eligible claimant, the level is limited to maintenance. What the provision looks like varies from case to case, and the court has a wide discretion.

    What will the court consider?

    The factors to be considered when deciding the level of financial provision are set out in the legislation itself, specifically section 3 of the Act. One of the factors in marriage or Civil Partnership cases, is the application of the divorce principle as a cross-check. While a starting point might be a 50/50 split of matrimonial assets, the length of the marriage is also a factor, as are whether the estate assets were acquired prior to the marriage.

    For example, a wife of a 30-year marriage who supported the Deceased building a family business will be in a stronger position than a wife of seven years where the estate includes a family business built up before the marriage. The court will also consider the financial situation of the surviving spouse including their personal assets, their income and whether this is sufficient (alongside any provision made for them in the Will) to provide the appropriate level of financial provision.

    After all the factors set out in the Act are applied, the court has a wide discretion. It may be that all your personal assets are required to provide reasonable financial provision for your spouse but your business can comfortably pass to your children without any further dispute. Alternatively, the court may award your spouse a share of the business if it is required for reasonable financial provision to be made.

    Of course, no one wants their loved ones to be at odds with each other after they’ve passed. Therefore, it’s important ensure that you have consulted a solicitor and made a Will to mitigate against any disputes.

    This article was first published in the March 2024 edition of South East Farmer.

    This content is correct at time of publication

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