Will 13.7: Claims against the estate

Question 1

Can a person make a late application if the 6 month window has passed?

Answer 1

Yes - the court has discretion

Question 2

How can a representative protect themselves from personal liability?

Answer 2

Wait 6 months from the grant of representation to start issuing assets

Question 3

What is the test/threshold for spouses to establish a claim against an estate?

Answer 3

they need to establish a ground of reasonable financial provision

Question 4

What will the court look at if a child is an adult?

Answer 4

Whether they are able bodied and in employment

Question 5

How long does a partner have to live with the deceased before their death to have/make a valid claim?

Answer 5

A person must be living with the deceased during the whole of the 2-year period immediately before the death as the spouse, civil partner or same-sex partner of the deceased to be able to bring a claim.

Question 6

What standard of financial provision will the child be entitled to?

Answer 6

The standard is such provision required for the child’s maintenance such that they can live decently and comfortably according to their situation. Factors like school and education will be important

Question 7

What is the time limit from the grant of representation to bring a claim for known beneficiaries?

Answer 7

6 months

Question 8

What will the court consider as guidelines for a surviving spouse to have a claim?

Answer 8

The court will consider their age and the duration of the marriage, their contribution to the welfare of the deceased’s family, and the provision which might have reasonably been expected on divorce at the date of death.

Question 9

If an application is approved, what financial provision order can a court make?

Answer 9

The transfer of property, payment of a lump sum, payment of income, and settlement of property on trust.

Question 10

What factors would the court consider for a claim by a surviving child?

Answer 10

The court would consider the financial resources and needs of the applicant, any other applicant, and any beneficiary (now or in the future), any moral obligation of the deceased to any applicant or beneficiary, the size and nature of the net estate of the deceased, the physical or mental disability of any applicant or beneficiary, and any other relevant matter, including the conduct of any person.

Question 11

What must a spouse show to make a claim?

Answer 11

That reasonable financial provision has not been made for them in the deceased’s estate

Question 12

What categories must an applicant fall in to make a claim?

Answer 12

• the surviving spouse or civil partner, if married to or in a civil partnership with the deceased at the date of death
• a former spouse or civil partner who has not remarried nor formed a civil partnership (they
  may be barred from making a claim through a clean-break divorce)
• a child of the deceased or a person treated as a child of the family of the deceased (such
  as a stepchild) – adult children are unlikely to be successful in a claim if able-bodied and in
  employment
• a person who was being maintained, wholly or partly, by the deceased before the death
  (the deceased needs to have been making a substantial contribution towards the
  reasonable needs of the claimant), and
• a person who was living with the deceased during the whole of the 2-year period
  immediately before the death as the spouse, civil partner or same-sex partner of the
  deceased.