Contentious probate expert, Alexia, explains what happens when someone makes a claim under the Inheritance Act and the property involved is jointly owned.
If a property is jointly owned, and one of the owners dies, you might think that their share would automatically pass to the other, surviving owner. Therefore, the deceased owner’s share of the property wouldn’t form part of their estate, would it?
Well, this isn’t always the case.
What happens, for example, if a spouse, or a child, has a claim against the deceased’s estate – and wants to inherit the share of the property that they owned? What if they have a claim under the ‘Inheritance (Provision for Family and Dependants) Act 1975’, and, without the deceased’s share of the property, the estate has nothing?
The Court has a very wide discretion under section 9 (1) of the Inheritance Act to order that the deceased’s share of the property is treated as part of their net estate. This effectively allows the court to claw back property passing by survivorship – so that they can satisfy an Inheritance Act claim where appropriate.
The Court will only exercise its power to claw back property passing by survivorship for the purpose of making provision. An application will first have to show that the will or intestacy did not make reasonable financial provision, having regard to each of the matters listed in section 3 of the Inheritance Act.
If you decide not to pursue an Inheritance Act claim because you think the deceased has no assets, you may want to think again. But, you’ll need to act fast. There’s a very strict time limit of six months – from the grant of representation or probate – that you have to bring a claim within.