He's left me out of his will. What can I do?

Aggrieved former partners are increasingly prepared to put up a challenge. Ian Hunter explains how the law works
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The Independent Online
A recent legal ruling that a live-in lover was not entitled to a share of her deceased partner's pension would seem to underline the vulnerability of dependants who are not expressly provided for in a will.

The reality, however, is that the time-honoured threat to cut an errant relative out of the will is not as potent as it once was. Moreover, changes - both in law and public attitudes - mean the situation is no longer as cut and dried as it once was.

One significant change is that we all appear to be more litigious than before. Exeter-based solicitor Huw Davey, a partner with Anstey Sargent & Probert, says that in his experience in recent years, the numbers prepared to challenge the terms of a will have been on the increase.

Mr Davey believes there are several reasons for this change: "First, potential claimants are better informed of their rights. Often financial advisers are able to offer guidance. Secondly, the recession has played its part, convincing some of the need to pursue a claim where in other circumstances they would be reluctant."

Perhaps even more significantly, a change in the law relating to deaths after 1 January this year is likely to lead to a further increase in claims. Section 2 of the Law Reform (Succession) Act 1995 now allows a common- law husband or wife, who lived with the deceased for two years prior to the date of death, to make a claim on the estate. Prior to the change, this category of claimants would only be eligible if they could show they were "maintained" immediately prior to the date of death.

The division of the deceased's estate is usually either governed by the terms of a properly executed will or, in the absence of a will, the rules governing intestacy. Intestacy rules set out the pecking order, governing the deceased's relatives' entitlement in descending order, depending on the extent of the blood connection.

However, the law recognises, in the form of the Inheritance (Provision for Family and Dependants) Act 1975, that a will or the intestacy rules may not adequately provide for everyone .

In particular, someone may be close to the deceased but not a relative. A typical situation is where the deceased re-marries late in life and bequeaths everything to his or her new partner, often leaving the children empty-handed and aggrieved.

Save in the case of common-law husbands and wives, claimants must be able to show that they have been maintained by the deceased immediately prior to death.

The law is precise and, to some observers at least, can seem both arbitrary and cruel. If a claimant has been supported by the deceased for a long period of time and then there is a gap shortly before death this will totally frustrate a claim.

Maintenance, which must be financial, can take a variety of forms including the payment of rent or mortgage. It will not usually stretch to caring for an ill partner. If claimants can establish that they have been maintained, a court must then consider whether sufficient provision has already been made for them.

Should sufficient provision not have been made, the court must then consider whether it should exercise its powers and if so what provision it should order from the deceased's estate.

Mr Davey advises parties to attempt, at least initially, to settle matters amicably short of action. He comments: "Preparing a case for hearing can be costly and time consuming. It will delay the distribution of the estate if the court takes the view that the claimants have a legitimate claim. Those who believe they have a justifiable claim should act quickly as a claim has to be made, in normal circumstances, within six months of the grant of probate or letters of administration."

If all else fails, legal action may still be needed. But if the alternative to a long-term family rift is that a formerly loved dependant is left with nothing, the choice really is no choice at all.

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