Claims on an estate by a Spouse


If you are a spouse and you feel that your spouse's Will does not leave you with sufficient housing or monetary needs (because some or all has been given to other beneficiaries) then to bring a claim you have to satisfy the following relevant principles are:

                1. does the distribution of the estate under the Will (intestacy) fail to make reasonable financial provision for the spouse; If so, 

                2. what would amount to reasonable financial provision from the estate?

Claims by a spouse are subject to an enhanced standard of reasonable financial provision, namely "such reasonable financial provision as it would be reasonable in all the cirucmstances of the case for a husband or wife to receive, whether or not that provision is required for his or her maintenance". The Court does not set about tweaking a Will so that the outcome is "fair" between the current beneficiaries and the spouse but that what you have inherited is unreasonable.

When assessing claims the Court looks at certain factors like: the financial resources and needs of the spouse, the financial resources and needs of the other beneficiaries and the size of the estate amongst others. Also, in claims by a spouse the Court looks at your age and your contribution to the welfare of the deceased's family including looking after the home or caring for the family. 

Of particular importance in spousal claims is the requirement that the Court have regard to what you, as spouse, would have received had the marriage ended in divorce rather than death. This is known as the "divorce cross-check". It is used as a factor for the Court to consider - along with the others mentioned above - rather than a figure which will be awarded by the Court.

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