Claiming Inheritance: Provision for Family and Dependents

Claiming Inheritance: Provision for Family and Dependents

Dealing with the death of a loved one is never easy. This is made even more so when the named estate of that person is not distributed in a way in which the close family or other dependents are expecting. 

What is Testamentary Freedom?

The law relating to a Will in Northern Ireland is premised on the principle of testamentary freedom. This means that a person can leave their assets to whomever they see fit as the law in Northern Ireland cannot dictate who must inherit what. It is their property to give. Similarly, where a person does not leave a Will, a person who ought to have been provided for may not receive any entitlement at all from the person’s estate. A common example of this is partners who cohabit together, are not currently provided for under estate distribution law in Northern Ireland where there is no Will in place.

It is worth noting that while 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 that does provide various protection to certain family members and dependents when their needs are not met by a person’s estate distribution. The dependent will need to meet the requirements of this order if they wish to claim financial delivery or an increase in what has been named so that the appropriate provision is made to them. This may also be possible where no Will exists. 

Who can apply for provision?

You can claim under the inheritance order if you:

  • are the spouse or civil partner of the person who has died.
  • are a former spouse or civil partner, provided you have not remarried or entered a new civil partnership.
  • lived together with the deceased person for at least two years before they died and as though you were married or in a civil partnership.
  • are the biological child of the deceased person or were treated by them as though you were their child, or
  • were financially maintained by the deceased person before their death.

How much could I be entitled to?

Your circumstances will determent what amount of financial provision you receive, your relationship to the deceased, and the amount of money and assets they have left behind.

Spouses and civil partners can be awarded a reasonable amount in these circumstances, which may be more than they require to live on if the person who has died was wealthy. This contrasts with the position of anyone else claiming because they can only seek financial provision which is required to meet their daily living costs.

Why would I need a solicitor?

Settling an estate can be complicated, it is best to get legal advice. 

If you are not a blood relative, not married, or in a civil partnership, you need a solicitor to access the circumstances and assist you with making a claim and offering support as a mediator. 

You should always get legal advice if, for example:

  • the terms of a will are not clear.
  • part of the estate is to pass to children under the age of 18.
  • the person who died has left money or property in a trust.
  • the person who died owned land or property abroad.
  • the person who died owned a business.
  • anyone is likely to dispute the will.

If there are any problems with the way that executors or administrators deal with the estate, for example, if there is unreasonable delay or if the executors or administrators misuse their legal powers, you will need legal advice so that a solicitor can negotiate your claim. All legal fees can be paid for from the estate. 

As a last resort, you may be advised to claim in court. In this instance, your solicitor will prepare the necessary paperwork, compile the evidence, and ensure your case is presented properly when it comes before the court. If successful, your solicitor will do their best to ensure that you recover as much of your legal fees as possible. All legal fees can be paid for from the estate.If you want to pursue a claim under the Inheritance Act, it is vital to obtain specialist legal advice from H McPartland & Sons as soon as possible. We offer a free consultation to seek advice on this process so do not hesitate to get in touch today.

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