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If you qualify under the Inheritance (Provision for Family Independence) Act 1975 the Court has the power to adjust any provision made for you under a will.
The Court has the power to make ‘reasonable provision’ for you if your application is successful by way of regular payments from an Estate, a lump sum payment from an Estate or an Order that property in the Estate be transferred to you direct.
Who can apply?
The scope of who can apply is limited to:
However, there is provision in the Act for an application to be made by ‘any other person who immediately before the death of the deceased was being maintained either wholly or partly by the deceased’.
Therefore, with the wider scope of the Act extending the Courts powers to include a person who is not a relative of the deceased but has been maintained by the deceased, applications under the Act are not uncommon.
Reasonable Financial Provision
If a Court is to determine such an application it must also determine what is reasonable financial provision. That will vary on a case by case basis but the Court will have regard for the following issues:
Again, the Court has the discretion with these categories to extend the scope of the Act to circumstances it deems fit.
Applications under the Act are limited by the time frame within which they must be made. Any application for an Order under the Inheritance (Provision for Family Independence) Act 1975, Section 2, must be made not later than 6 months after the date upon which representation of the deceased’s Estate is taken out. No application may be made before a grant of representation has been obtained.
However, the Court has the power to grant permission for such an application outside of this limited time frame but will do so only in exceptional circumstances after considering the reason for any delay.
If you were living with a person who has died but you were not married, the rules of intestacy do not provide for you. However, you may be able to apply to the Court for financial assistance if you had lived with your partner for 2 years before their death.
Those treated as children of the deceased
If you were treated as a child of the deceased although you were not a blood relative or adopted, the Inheritance Act may provide for you but your will not inherit under the Estate under the current rules of intestacy.
Therefore, if you believe you ought to have been provided for in the Estate of someone close to you, but you have not been, you may be able to apply to the Court to vary how the Estate is distributed, to include reasonable provision for you.
If you would like to talk to one of our lawyers in relation to such application, we have great experience in dealing with provision applications and can provide you with further details as to the options available to you.
If you would like to speak to one of our litigation lawyer please contact us for supportive and expert advice.
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