Inheritance (Provision for Family and Dependents) (NI) Order 1979 Claims

Dealing with the death of a loved one is always difficult. This is made more so when the distribution of that loved one’s estate doesn’t adequately meet the needs of close family members or other dependents or is particularly unfair in the circumstances.

The law relating to Wills in Northern Ireland is premised on the principle of testamentary freedom. This means that a person who makes a valid Will can dispose of their property in any way they see fit as the law in Northern Ireland does not dictate who must inherit a person’s wealth. Similarly, where a person does not leave a Will a person who ought to have been provided for may not receive any entitlement from the person’s estate. For example, co-habiting partners are not currently provided for under estate distribution law in Northern Ireland where there is no Will.

Whilst it is not up to the Court to re-write a person’s Will the Inheritance (Provision for Family and Dependents) (NI) Order 1979 is legislation which provides some protection to certain classes of family and dependents when their needs are not met by a person’s estate distribution.

This article addresses the key points of a claim under this legislation. Please see our article on Contesting a Will for claims against the validity of a Will.

Who can bring a claim?

Under the legislation there are classes of people who can potentially bring a claim where they have not been provided with reasonable financial provision by the person who has died. These classes of people are:-

• The spouse or civil partner of the person who has died;
• A former spouse or former civil partner of the person who has died;
• Any person living in the same household as the person who died for at least 2 years prior to the death where they have been living together as if they were husband and wife or as if they were civil partners albeit that no marriage or civil partnership ever took place;
• Any child of the person who died including minors, adults and adopted children;
• Any person treated by the person who died as a child of the marriage or civil partnership to which the deceased was a party (e.g. step-children, fostered children or potentially grandchildren raised by their grandparents); and
• Any other person who was being maintained by the person who died immediately before the death.

What could I claim?

This will vary substantially from case to case and will depend on the specifics of your case. There is a key distinction drawn between spouses/civil partners and the other categories of applicants. Under the legislation spouses/civil partners of the person who has died are entitled to receive as much out of the estate as is reasonable in all the circumstances. Whilst unlikely this could end up being all of the estate.

In contrast the remaining categories of applicant can only obtain reasonable financial provision out of the estate to meet their maintenance requirements. This substantially limits what other applicants could obtain from the estate unless there is a strong moral obligation to depart from this standard.

What orders could a Court make?

The Court has a wide range of powers to make orders in this context. For example:-

• An order that a specific asset be taken from the estate and given to the applicant, put on trust for the applicant or be purchased for the applicant (e.g. a property to live in);
• An order that the estate pay an income to the applicant;
• An order that the applicant receive a lump sum; and
• An order varying any pre-nuptial or post-nuptial agreements in relation to a marriage or civil partnership.

All of these orders are entirely at the Court’s discretion. Even if you fit into the relevant categories and think you ought to receive something from the estate it does not mean that a Court will make an order as the Court will take into account a number of relevant factors.

What factors might a Court take into account?

The Court is required to take a number of factors into account including:-

• The financial needs and resources of the applicant(s) in the foreseeable future;
• The financial needs and resources of the beneficiaries of the estate in the foreseeable future;
• Any obligations owed by the person who has died to the applicant(s) or the beneficiaries of the estate;
• The size and nature of the net estate;
• Any physical or mental disability of the applicant or any beneficiary of the estate; and
• Any other matter, including the conduct of the applicant or any other person, which the Court considers relevant in the circumstances.

These factors will mean that the Court looks at the applicants’ and the beneficiaries’ work circumstances, housing needs, potential pension entitlements, health needs, educational needs, transport needs and their conduct where relevant. All these factors are considered against the backdrop of the size and nature of the estate which will always be important as a Court can only order payments or assets out of an estate where there are enough assets to deal with all the relevant needs.

Are there any time limits?

Yes. Unless the Court grants special permission any application under this legislation must be made to the Court within 6 months of a Grant of Representation being extracted in the estate. Obtaining a Grant of Representation is a process that those who are entitled to deal with the estate (e.g. executors under a Will or next of kin where there is no Will) must go through in order to get access to the estate assets where they are over the relevant threshold. This process can be relatively short if the estate is not complex or lengthy if the estate is more complex.

In any event it is important to move quickly with any claim. Whilst there is a mechanism for bringing a late claim this should never be relied upon as it is entirely up to the Court whether it allows your claim to proceed depending on whether your reason for the late claim is acceptable.

Alternative Dispute Resolution (“ADR”)

Bringing a claim to Court should usually be your last resort after trying to resolve a claim using a less contentious process. The Court actively encourages parties to litigation to consider mediation, arbitration or simple negotiations using legal representatives to avoid using up Court time unnecessarily. The Court has a protocol which ought to be followed before bringing a case to Court and this will involve telling the person dealing with the estate that you think you have a claim and explaining why so they can decide whether to deal with the claim without you needing to go to Court. You should always seek legal advice before attempting to engage with the other parties involved. Given that these claims typically involve family members ADR can be a better process to preserve family relationships rather than bringing a case through the Court.

Our Will, Trust & Estate Disputes Solicitors are skilled at helping you choose the right forum to deal with your case and can adapt their style as necessary to meet your needs.

Funding

Legal Aid is available for applicants who meet the relevant financial eligibility criteria and have sufficient merit to their case and at Wilson Nesbitt we are prepared to assess whether you are eligible and make the application on your behalf to get your case up and running as quickly as possible.

We also consider various funding arrangements for those who are not eligible for Legal Aid including monthly billing so you can budget accordingly and after the event insurance to protect you against the other party’s costs if you are unsuccessful.

Contact

Whether you are seeking to bring a case against an estate or are an Executor or Administrator seeking to defend one take the next step and contact our Will, Trust & Estate Disputes Solicitors using our Freephone number 0800 840 9293 or email willdisputes@wilson-nesbitt.co.uk to let us take your initial details and setup a consultation with one of our experts by phone, video conferencing or face to face consultations in our offices in Bangor or Belfast. Both our offices are equipped with appropriate social distancing measures including protective screens in all our conference rooms.