Once you establish that you are eligible, you must then show that you have failed to receive reasonable financial provision from the deceased’s estate through the rules of intestacy.
Reasonable financial provision means such financial provision as is reasonable in all the circumstances of the case and sufficient for your maintenance. This means an amount that is sufficient to enable you to live comfortably and decently according to the standard of living that you have become accustomed to during the deceased’s lifetime.
An unmarried partner will usually receive less than a spouse or civil partner, as the laws regulating family provision claims make more generous provision for spouses/civil-partners.
You must be able to show more than that you simply need financial assistance or that it is not fair that you did not receive anything under the rules of intestacy.
The entire circumstances of each case will be examined by the court and the following are some of the factors that will be weighed up:
- Your financial resources and needs including your earning capacity, financial obligations and debts, the standard of living and the extent to which the deceased contributed to that standard;
- All of the circumstances of your relationship, including the duration of your relationship, the contribution that you made to the welfare of the family such as by looking after the home or caring for the family;
- Your age and your needs;
- The size and nature of the estate; and
- Any physical or mental disability you suffer, or any other beneficiary suffers.
The court must decide whether the fact that you received nothing from the estate is an unreasonable result.
The court will endeavour to reach a decision which is fair to all parties involved and a balance must be struck between the competing claims of yourself, the beneficiaries under the rules of intestacy (who may include your own children or the deceased’s children from another relationship) or any other claimants who commence a family provision claim.
If the court considers that an order should be made in your favour, this order can be for a lump sum payment, periodical payment or for the transfer of property such as the deceased’s house. Regardless of what the order is, it can only be made from the net estate of the deceased. If some of the estate has already been distributed, the court has power to recover these assets for the purposes of making an order in your favour.
Select a solicitor who can assess the strength of your claim and assist you in making the decision as to whether or not you should proceed with your claim. They should be able to confidently and assertively ensure that your rights are protected.