Pursuant to the regulations of the English law, a person, who has been excluded from testate or intestate succession, has a right to apply to a court for a reasonable financial provision. The applicant might be not only a disinherited family member or a current or former spouse but also a cohabitee as well as another person who was financially dependent on the deceased directly before their death.
A short introduction
Contrary to civil (continental) law, which encompasses also Polish law, English law does not provide legal institution of the so called reserved portion. Thus, a person omitted in the testament cannot apply to a court for part of the estate by way of a claim on account of the reserved portion. Instead, English regulations provide for a slightly different institution, which in principle is similar to the reserved portion. Inheritance (Provision for Family and Dependents) Act of 1975 regulates this institution and this is why the claim based thereon is commonly referred to as the Inheritance Act claim. The aforementioned regulations allows people who are the closest to the decedent to demand a court to grant them part of the estate in case where they are excluded from succession. The closest person is to be understood as a current or former family member, such as:
- spouse or civil partner of the deceased;
- child of the deceased;
- stepson or stepdaughter.
Persons close to the decedent, though formally not family members, are also affected. The Act mentions:
- cohabitee who lived in the same household as the deceased for the period of 2 years immediately before the death of the deceased;
- any other person who immediately before the death of the deceased was maintained, either wholly or partly, by the deceased.
The regulations of the Inheritance Act apply only if the decedent was domiciled in England and Wales. The legislator provides also a deadline for potential applicants – the application must be submitted no later than 6 months after a Grant of Probate was issued.
What matters in regards to the submitted application?
When determining whether the disposition of the deceased’s will or that of law related to intestacy will be affected by the applicant’s claim, and to what extent, a court must take into account all important matters and facts of a given case. This includes the size and nature of the estate. A court should also take into account obligations and responsibilities which the deceased had towards any applicant, financial resources and financial needs of the applicant, other applicants or testamentary heirs have or are likely to have in the foreseeable future. Relations between the decedent and their family as well as between the deceased and the testamentary beneficiaries are also relevant.
The scope of a court’s powers
A court, when making orders as to the decedent’s estate, follows the rule of reasonable financial provision. The reasonable financial provision is to be understood as such provision which is in a given case justified and the form and size of which are individually determined. A judge may decide on their own as to the form of the provision. According to the Inheritance Act admissible forms are among others:
- periodical payments made to the applicant out of the net estate of the deceased;
- lump sum paid to the applicant out of the net estate;
- transfer of property comprised in the estate.
Ilott vs. Mitson case
Inheritance Act does not generate many court cases. There reason for this is that people tend to negotiate outside a court. This is why there are few precedents and cases which attract much attention. Ilott vs. Mitson case is a good example. It concerned the inheritance of the deceased Melinda Jackson, who appointed as her only heirs three non-profit organizations active in the field of animal protection. Jackson was not involved in the activity of any of them. The woman deliberately omitted her only daughter in her testament, Heather Ilott. Jackson has not kept in touch with the daughter for years. After the death of her mother Heather Ilott applied to a court for a financial provision. She was in a dire financial situation and had to provide for 5 children. The case was finally decided upon in 2017 when the Supreme Court ruled in favor of the testament beneficiaries reinstating the initial provision that Ms. Ilott was granted by the District Court in 2007 – a lump sum amount of £50 000. The court stated that the provision should be limited to resources necessary to meet day-to-day needs and should not be a source of capital to the applicant.
Inheritance Act is supposed to be of help in cases similar to that of Ms. Ilott’s. A courts takes into account the rule of equity and grant justified provisions to the applicants which are supposed to aid them and their family. The Act does not serve for the disinherited to seek enrichment. It allows, however, courts to grant a justified provision to people who were close to the deceased and concurrently excluded from the succession in the case where they are in need due to their difficult financial standing.
Tomasz Krzywański, attorney-at-law, and Wojciech Jaranowski, Private Client Practice, GWW