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Alistair Rustemeyer

Partner - Brighton & Hove

Can I challenge an Estate where there is no Will?

Can I challenge an Estate where there is no Will?

Losing a loved one is a naturally distressing time. But what happens when you discover that they did not have a Will?

If there is no Will, then the Deceased’s Estate will be administered under the Intestacy Rules of England and Wales (provided that the Deceased was a resident of this jurisdiction). These rules can seem confusing and, in some instances, unfair and outdated.

Rather than a Grant of Probate, an application for Letters of Administration will usually be made and the applicant will be tasked with distributing the Estate as per the Intestacy Rules. The division depends on various factors and for ease, a basic click chart of particular situations can be found here Gov.uk someone dies without a Will

Quite notably, the rules do not provide an automatic right to inherit to a partner who was not married or in a civil partnership with the Deceased, or for step-children who have not been legally adopted.

It is easy to see how administration of an Estate under the Intestacy Rules could lead to financial hardship and seeming unfairness between members of a 21st Century family unit.

So, can I challenge distribution of an Estate under the Intestacy Rules?

As there is no Will, it is of course not possible to launch a challenge to the Will in the traditional sense. However, this does not mean that you must simply accept the standard division.

The Inheritance (Provision for Family and Dependants) Act 1975 is a critical piece of legislation and is much reviewed by every Contentious Probate practitioner.

This Act makes provision to allow certain specified classes of individual to apply to the Court for an Order redistributing the Estate of a Deceased person, whether or not they have made a Will.

In very basic terms, some classes of person may apply regardless of the financial impact on them of the Deceased’s death, others are required to show that the death and subsequent distribution under the Intestacy Rules would lead to financial hardship.

Case law in this area has operated to assist with the practical application and understanding of this Act. If you believe you have grounds to mount a challenge, we would assess your situation in light of the relevant case law, using them to assist you wherever appropriate.

Who are the Specified Classes under the Act?

The persons who may apply under the Act are set out in Section 1(1) (our emphasis added);

1Application for financial provision from deceased’s estate.

(1)Where after the commencement of this Act a person dies domiciled in England and Wales and is survived by any of the following persons:—

 (a)the spouse or civil partner of the deceased;

(b)a former spouse or former civil partner of the deceased, but not one who has formed a subsequent marriage or civil partnership;     

 (ba)any person (not being a person included in paragraph (a) or (b) above) to whom subsection (1A) below applies;

(c)a child of the deceased;

(d)any person (not being a child of the deceased) who in relation to any marriage or civil partnership to which the deceased was at any time a party, or otherwise in relation to any family in which the deceased at any time stood in the role of a parent, was treated by the deceased as a child of the family;

(e)any person (not being a person included in the foregoing paragraphs of this subsection) who immediately before the death of the deceased was being maintained, either wholly or partly, by the deceased;

that person may apply to the court for an order under section 2 of this Act on the ground that the disposition of the deceased’s estate effected by his will or the law relating to intestacy, or the combination of his will and that law, is not such as to make reasonable financial provision for the applicant.

1A)This subsection applies to a person if the deceased died on or after 1st January 1996 and, during the whole of the period of two years ending immediately before the date when the deceased died, the person was living—

(a)in the same household as the deceased, and

(b) as if that person and the deceased were a married couple or civil partners

Final Comments

As you can see, the Act is fairly inclusive, and does operate to capture step-children and unmarried partners who meet specified criteria.

There are nuances to the operation of the Act, the way it should be used, and the way it interacts with the case law. Often a claim for an amended distribution will be met by a Defence from those Beneficiaries who stand to ‘lose’ as a result.

This article is not intended to be an exhaustive comment on the prospects of challenging intestacy Rules, but we hope to clarify that the lack of a Will does not mean that you have to accept the standard distribution.

If you believe that you may have grounds to challenge an Intestate Estate, please contact our Dispute Resolution lawyers below to discuss your specific situation.

Alistair Rustemeyer

Partner, Solicitor

T: 01273 329797

AlistairRustemeyer@rixandkay.co.uk

 

Rosie Duplessis

Chartered Legal Executive

T: 01273 766929

RosieDuplessis@rixandkay.co.uk

 

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