Under The Inheritance (Provision for Family and Dependants) Act 1975, the court has power in appropriate cases to “vary” the terms of the deceased’s Will or, if there is no Will, the Intestacy Rules. If you can establish that you are a recognised applicant, (examples of which are spouses/former spouses, children, cohabitees and anyone who was being maintained financially by the deceased), and that the Will or the Intestacy Rules do not make reasonable financial provision for you, then the court can order such provision.
What happens, however, if you have a good “Inheritance Act” claim, but cannot afford to take it all the way to trial or settlement on your own? As confirmed in a recent case, the answer is to make an application under Section 5 for an interim order.
If the court is satisfied that the applicant is in immediate need of financial assistance and that property forming part of the deceased’s estate can be made available to meet that need, then it can order either a lump sum or periodic payments or both.
In deciding what provision to make, the court should take into account the same factors as it would at the final hearing of the claim, including the financial needs and resources now and in future of the claimant and any other beneficiary of the estate, the size and nature of the estate and any other matter which the court thinks is relevant.
In the recent case of Weisz, the claimant was the deceased’s second wife and the defendants were his executors and trustees and the three children from his first marriage. The estate was worth over £4,000,000. Having decided that in terms of “immediate need” one needed to look at the position over the next year or so, the judge decided that the claimant was entitled to:
- Interim payments at the rate of £5,200 per month;
- Over £55,000 in relation to legal fees going up to the first hearing of the substantive claim. The judge thought it was wholly unreasonable to expect the claimant’s solicitors to “bankroll” the case to its conclusion.
As the price of obtaining such an order, the claimant had to give an undertaking to repay such sums, if any, as the court at the end of the day considered to be an overpayment.
Although there are very few case reports relating to these applications, it is of course a helpful reminder that this jurisdiction exists for the right case.
If you need legal advice on anything raised in this blog, please contact Paul Grimwood directly on pjg@hartbrown.co.uk or call 01483 887766.
This is not legal advice; it is intended to provide information of general interest about current legal issues.
