Claim for financial provision under section 9 of the inheritance act

[section9]

NC of course along with some insignificant but possibly identifying details.

dd is 10 and her dad died 6 months ago. He died intestate and had no interest in our daughter from the beginning. We weren’t together. Dd has two half siblings that are also half sibs to each other.
I have been told by a solicitor that Dd has a good claim for financial provision from the estate but I’ve read on here that this is rare. Dd receives a monthly dependents pension and I think this would impact on a claim
under section 9. There is also a lump sum to be divided between the sibs. The eldest has applied for probate and she will divide this lump sum equally between the 3 of them when it is released on probate being granted.
Can anybody tell me more about a claim under section 9 please and what it would involve? The legal advice I originally sought advised to do this with a company who do no win no fee.

I should add that the original solicitor doesn’t do no win no fee and said that the legal fees would eat up most of the estate. I’m uncomfortable going after the estate for Dd when her sibs won’t get anything from it. I know I have to go after dds interests here but I’m worried about the family fall out. Only one sibling was involved in dds life before their dad died. The eldest didn’t get in touch at any point and has only been interested since their dad’s death. The other sibs are late 20s/early 30s.

Section 9 seems to be about making a claim for property held in joint tenancy - did he own a property with someone else? Is that a spouse or partner?

His ex-wife.

As in his divorced over a decade ago ex-wife who is remarried and living in another property with her husband just to be clear.

Everything depends on the specific circumstances of your daughter and her half siblings.

No one here can give you advice about a legal case that is very highly fact specific.

Having said that, I note that you said:

"There is also a lump sum to be divided between the sibs. The eldest has applied for probate and she will divide this lump sum equally between the 3 of them when it is released on probate being granted."

So, there are three children of the deceased and the plan is to divide the estate equally between the three of them?

In addition to this your DD is also receiving a pension as his dependent.

If you do try to make a claim I would guess that the first question to be answered is what extra support your DD needs that would not be met by having an equal third of the estate?

You have not mentioned any reason why your DD might need extra support. Is she disabled or have some life limiting illness for example?

But, the more usual way of making a claim is under Section 2 of the Act rather than Section 9.

Section 9 deals with things like life insurance policies and cases where the value of the deceased's estate is disputed (for example, the value of the deceased's share of a property is disputed).

So, for example, if a property was owned as tenants in common and the deceased owned 50% of it, that would automatically be part of the deceased's estate. Although there may well be arguments as to the value of that 50%.

But if they were joint tenants then the property would normally pass by right of survivorship to the other owner (typically the surviving spouse). However, Section 9 allows the Court to override the normal operation of the law of survivorship, especially if the property concerned was a rental property rather than the main residence.

It sounds as though there may be a dispute as to what property/ies are included or not included in the estate.

All in all it gets very complicated indeed. You do need very specific advice from a lawyer who specialises in this area. There is a body called the Society of Trust and Estate Practitioners (STEP), these are solicitors who are very experienced in this area. Might I suggest that you google something like "STEP solicitor [name of your town]" which will bring up a list of qualified and experienced solicitors in your area.

You may also wish to google "contentious probate solicitor [name of your town]" as well.

Thank you very much, I’ll look at that.
They were joint tenants and his ex is saying there is no estate to divide up. The lump sum is from his pension and will be divided equally between the three siblings. I should have clarified that, sorry. The pension lump sum is the only money any of them will receive apart from DD’s dependents pension.
The eldest wants the house sold and the proceeds to give the ex-wife a fair share along with the three dc to get an equal share each. The ex was the one to suggest this but has now gone back on it saying there’s no estate and the house is her’s which it is. I was told I should make a claim under section 9 to get provision for Dd but I can’t see that she’d be entitled to anything considering the pension lump sum and the dependent’s pension. There are no illnesses that would need extra support.

If they were joint tenants then his share of the house is legally his exes, there is nothing that would change that and she can do as she pleases with it. It sounds like his other financial assets are being shared with her anyway, so not sure what you'd be trying to claim for?

I’m confused too but that’s what I was advised by a local solicitor. He said that under the Act the house is part of the estate and I can claim for Dd against it and that I should do so. I don’t think the ex is going to give any of the dc anything at all except for her dc who will inherit the house.

The house would only be part of the estate if they owned it Tenants in Common.

If it's joint tenants then it's now the full ownership of the ex wife.

Yes, that’s what I understand but I’ve been told there’s no reason why there wouldn’t be a successful claim under section 9 for financial provision for Dd. I’ve never been too convinced about that though because of the pension lump sum and dependent’s pension. The advice is conflicting.

A successful claim would sever the joint tenancy so that his half would form part of his estate - I think you need to consult a solicitor specialising in contentious probate, particularly one with experience in such claims, to understand what your chances of success would be.

I'd be amazed if it is anywhere near as simple as seems to have been suggested to you given she's being provided for through the dependents pension and a share of a lump sum. Were you receiving maintenance from him when he was alive? What is the pension amount like compared to that?

Looking back at the letters, it was a contentious probate solicitor who told me this. I did get maintenance and the pension is significantly more than this so I was surprised when he said I should make a claim under section 9.
The eldest gets nothing as things are so was hoping for a share of the estate somehow but it’s not like I could share out dds money anyway because it would be hers and hers alone due to age and her dad providing for her via maintenance. I’m in a tricky position.

If he had 3 DC and the eldest has said sh will get it and split equally between the 3 half siblings I think that's fair, especially as your DD gets a monthly pension payout.

When I say the eldest gets nothing, I mean from the estate as there isn’t one because he had no money and his share of the house goes to his ex-wife. The eldest gets a share of the lump sum pension, the middle child gets a share of the lump sum and inherits the house after the ex-wife’s/mum’s death, and Dd gets a share of the lump sum and the dependent pension. The middle child was very much the golden child who got all the time and attention. The eldest got very little and Dd was reduced to an enforced maintenance payment each month and never actually met her dad because he didn’t want her to start with. It is only by having a good pension that Dd gets anything and the same goes for the eldest.

Whilst this is true, Section 9 of the Inheritance Act allows the courts to change this and add part of the property to his estate.

Was there a financial settlement when they divorced? If so, that may have changed the ownership of the property. That would have effect even if the change was never registered with the Land Registry. It is also worth checking that he did not sever the joint tenancy.

Most of the advice about the difficulty of making claims under the Inheritance Act relates to adult children who are no longer dependent on the deceased. You are in a better situation to make a claim on behalf of your daughter. The question is whether the pension and lump sum are adequate financial provision for her. The contentious probate solicitor was in a much better position to advise on that than anyone on here. You should listen to their advice.

There was no settlement on divorce and the tenancy was definitely joint tenants. The pension is £900 a month and the lump sum will be around £30,000 depending on how the eldest decides to split it. If there’s nothing from the house the eldest might split it between the eldest and youngest because the middle child will get the house. The house is worth around £300,000 so the middle child inherits much more. It’s a situation that makes me uncomfortable that I have no control over. The middle child thinks that the eldest and youngest aren’t entitled to anything at all. Not even a share of the pension lump sum.

If the pension is written into trust then the eldest child doesn’t get to decide what happens to it - the pension trustees do. Did DDs father have an expression of wishes? That usually dictates what happens to any lump sum on death. It’s worth contacting the pension trustees yourself to make sure that your DD gets a fair share- you might chose to make a case that she should get a bigger share because she’s a minor and won’t get any future support from her dad, which the others might have had. Or that the expression of wishes should be set aside if it makes no provision for her. I have no idea how successful that might be though.

There’s no expression of wishes. He didn’t make any provision in the event of his death beyond what naturally came with his job. The lump sum will be paid out to the executor (the eldest) to distribute as seen fit. Probate is dragging on but once that’s granted the lump sum will be released to the eldest.

Having worked out how much Dd will receive by the time she’s 18 via the pension-around £100K then I can’t see how she’d be entitled to more. It’s far more than his other kids in terms of cash.

Have you heard that from the pension company directly? Or is this according to the eldest? Because this sounds a bit odd

Most pension schemes are usually outside of the estate as they are held in trust, so they are not legal property of the deceased.

If someone dies intestate then a personal representative needs to be appointed to obtain letters of administration (probate) but they don't get to decide how the estate gets divided - it needs to be administered per the laws of intestacy. So it's not up to the eldest to decide who gets what of the pension, if it is part of his estate.

If it isn't part of the estate (likely, as a pension) then it's still not up to the eldest to decide who gets the lump sum. The trustees would make that decision

Once the letters of administration are issued the pension company will release the death benefit to the eldest as the personal representative. This is also what the pension company have told me. The eldest has applied for probate and is the only one who they will release the funds too. I also made a claim for the death benefit whit on behalf of my Dd which I’d forgotten about so I’ll call them tomorrow and see where things are in relation to this although as far as I know they were waiting for the letters of administration to be issued. I don’t think the middle child has made a claim but I would expect them to get an equal share. I don’t think the eldest can decide to split it two ways instead of three?

Who would the trustees be?

The only issue that might concern me is that as your daughters 'representative' you need to be seen to have got the best deal for her.

So long as you have then thats what matters

@JohnofWessex does that mean going after part of the house via section 9? She gets a good amount via the pension and any more seems greedy but of course I want to do what I should for her.