By Trainee Solicitor, Franklyn Jones
If an individual wants to make a claim on a deceased person's Estate, they only have a limited time in which to do so. The deadline to make a claim is 6 months from the Grant of Representation being issued, though it is possible to apply to the Court for an extension to this deadline.
If the Grant of Representation hasn't yet been issued, then it's possible to lodge a caveat at the Probate Registry. This will prevent the Grant from being issued and, in turn, prevent any payments from being made out of the Estate while the claim is being investigated. A caveat can remain in place for up to 6 months.
For free initial advice and guidance call our Probate Advisors on 03306069584 or contact us online and we will help you.
Why Do People Claim on an Estate?
In England and Wales, there are no restrictions on how someone can distribute their assets in their Will. Therefore the person making a Will is not forced by law to leave any amount of their Estate to their dependents.
If a Will has been signed by a person of sound mind, who knew the contents of their Will and there was no fraud or undue influence in the signing of the Will, the validity of the Will cannot be challenged. However, under the Inheritance (Provision for Family and Dependents) Act 1975, it is possible for certain individuals to make a claim against the Estate for "reasonable financial provision." Reasonable financial provision means an amount that is appropriate for that individual's maintenance.
These claims can be made by eligible people where no (or little) provision has been made for them in the deceased's Will, or where the person has died without making a Will.
Who Can Make a Claim on an Estate?
Those who are entitled to make a claim under this law are:
- the wife, husband or civil partner of the deceased
- a former wife, former husband or former civil partner of the deceased who has not remarried
- anyone who was living in the same household as the deceased (and their spouse) for the two years leading up to their death
- a child of the deceased (regardless of their age)
- any person who was treated by the deceased as a child of the family during the deceased's marriage (i.e. stepchildren and former stepchildren)
- any person (not included in above) who immediately before the death of the deceased was being financially maintained, either wholly or partly, by the deceased
What Will the Court Examine?
When considering a claim against an Estate, the Courts will look at the following questions:
- Does the Will (or the Rules of Intestacy, where there is no Will) make reasonable financial provision for the applicant?
- If not, should the Court intervene and award this provision from the Estate?
- If so, what type of provision is appropriate in this particular case?
Time Limit to Make a Claim
The time limit for making a claim to against an Estate is six months from the date that the Grant of Representation was issued, unless the Court gives permission to extend this deadline. If this deadline is missed, there is a risk that the person will not be able to make their claim against the deceased's Estate.
For this reason, in the majority of cases, it is recommended that the Executors do not distribute anything from the Estate until at least six months after receiving the Grant of Representation.
Can the Time Limit for Claims be Extended?
Whilst the time limits are strict, the Court can legally grant permission for a claim to be commenced after this time limit has elapsed, but permission must be applied for.
If an application is made for permission to make a claim after the expiry of the six month period, the following questions are likely to be considered by the Court:
- Why the claim is outside of the time limit (and what evidence there is to support this)
- What has happened since and before the time limit expired
- What are the relevant factors established by case law? These can be summarised as follows:
- For how long has the Claimant delayed and what are their reasons for the delay?
- Have negotiations commenced within the time limit?
- To what extent has there been a distribution of the Estate assets?
- What are the overall merits of the claim?
Subsequently, it is important to note that you'll need to act quickly if you feel that you have any grounds to claim against an Estate.
Entering a Caveat
Another option for a person intending to make a claim against an Estate is to lodge a 'caveat' at the Probate Registry. This will mean that the Probate Registry will not be able to issue a Grant of Representation and the Executor will not be able to distribute the assets of the Estate while the caveat is in place (which can be up to 6 months).
It is easier to claim against an Estate where the Grant of Representation has not been issued, and the Estate assets have therefore not yet been distributed. The period the caveat is in place should be used to investigate any potential claim. If you are looking to make a claim against an Estate, it is advisable that you seek independent legal advice as soon as possible.
To speak with a Co-op Probate Advisor call 03306069584 or contact us online and we will call you.