Family litigation & death: what happens next? By Jonathan James

Divorce|June 3rd 2010

One of the saddest realities of family litigation is that a death is not necessarily the end of the arguments. The majority of family litigation concerns a fair division of the property acquired during a relationship, and how to provide for the futures of a couple who have separated.  It includes how to look after any children that they have had together.  A small minority of cases, however, arise after somebody’s death.  Sometimes there are question marks over whether or not the Will left behind was properly executed.  More commonly, there can be an issue about whether or not the Will (or where there is no Will, the rules of intestacy) makes reasonable provision for the deceased’s family and dependants.

Of all the disputes we deal with, I have to say that these cases come close to being the saddest.  Only cases about the care of children consistently depress practitioners more.

There are two great myths about what happens with someone’s property after they die.

Myth 1 – Whatever is in the Will is sacrosanct.

“If you haven’t been left anything, there is nothing you can do.” Wrong!  1975 saw the passing of the catchily titled Inheritance (Provision for Family and Dependants) Act.  Although it does not trip off the tongue easily, it is an important piece of legislation.  Parliament recognised that sometimes the Wills made by people, or the rules of intestacy when no Will was made, could simply be too harsh to the people left behind.  Why should a husband or wife of many years receive next to nothing at the deceased’s whim?  Why should somebody be left to depend on state benefits when actually there was plenty of money or property, but it was being left to somebody else?  One of the purposes of government is to deliver outcomes that are just and fair.  Parliament therefore acted to give the courts the power to deal with situations that were plainly unfair.

Myth 2 – Surely this means that the Court can rewrite the Will and do what it thinks is right?

Well no, it is not that simple. (Is it ever?)  Parliament is very slow to interfere with somebody’s right to make his or her own Will and deal with their property as they wish.  The Human Rights Act, which gives prominence to the right to enjoy one’s own property, can extend to what happens to property after death.  The powers given by the Act are not to be used lightly.  Only certain classes of people are entitled to apply under the Act.  These are as follows:

  • A surviving spouse (husband or wife) of the deceased.
  • A former spouse who has not remarried.
  • A child of the deceased.
  • Anyone who was a child of the family so far as the deceased was concerned (e.g. a stepchild).
  • Any person who, immediately before the death of the deceased, was being maintained either wholly or partly by the deceased.
  • Anybody who, for the whole of the two years preceding the death, was living with the deceased as husband or wife.

However these people can apply only if, viewed by an outsider, the Will or the rules of intestacy did not make “reasonable financial provision” for them.

A surviving husband or wife is in a special position.  He or she would be entitled to whatever is reasonable in all the circumstances of the case, whether or not that is needed to provide for his or her day to day living.  By contrast, all the other people are entitled at most only to the amount that would be reasonable to provide for their day to day needs.

The Act can kick in where a Will or intestacy makes no provision at all for one of the deceased’s dependants.  It can also apply where there was some provision but it was clearly not enough.  I have seen it used in different circumstances.  For example, a claim by a child against his father’s estate when his father had made no provision for him in his Will, presumably because he had separated from the child’s mother some years previously.

The most stressful case I have ever encountered involved an application by a former wife against the estate of her former husband.  They had been separated for many years and the husband was shortly to be married to another lady with whom he had been living for several years.  The claim was successfully defended and, I regret to say, should never have been brought in the first place.  The only property which was available to meet the claim was the very modest house in which the husband had been living with his fiancée and his two would-be step-children for probably four or five years before his death.  The court has to balance the competing claims of all the people who had a moral claim to be provided for by the deceased- and so the claims of the fiancée and her children understandably took priority.

Prevention is better than cure

In the standard letter sent by Stowe Family Law to all our clients when they instruct us for the first time, we advise them to consider making a Will.  We do not draft Wills but we can refer clients to a firm which is able to do this.  It really is important.  It is bad enough coping with the unexpected death of someone close to you; it is incomparably worse when the bereavement is merely the starting gun for litigation that can linger on for months if not years.  A good probate Solicitor will be able to provide advice about the sorts of Wills that may run into trouble with the courts.  Steps can be taken to minimise the risk of anyone making an application under the Inheritance Act.

So what should be done where someone who should have been provided for has simply not received enough?

As with just about every form of litigation, the courts are not places to go without legal advice and representation.  Inheritance Act claims are technically quite tricky.  There are time limits that must be complied with and, if they are missed, the claim will fail.  Applications are not made in the Family Courts but in the Civil Courts, so Civil Procedure Rules apply, not the Family Proceedings Rules.

Unfortunately, I have encountered Inheritance Act applications where even the lawyers have produced a very poor performance indeed.  Many claims are referred to probate lawyers because they arise at death.  However, the way in which the court decides Inheritance Act claims is actually much more similar to family proceedings.  A judge is going to have to examine evidence and reach conclusions as to facts.

  • What was the deceased’s estate?
  • Who were the people who had a moral claim upon his estate?
  • To what extent was the Claimant dependant on the deceased?
  • Taking all this into account, what is reasonable provision in all the circumstances of the case?

Most probate lawyers are non-contentious lawyers and this sort of exercise is quite alien to their day to day work.  However, it bears a striking similarity to the sort of exercise carried out by a court in divorce proceedings, when deciding how much each party to the marriage should receive from the marital pot. So a family lawyer who takes the time and trouble to become acquainted with how the Act works is in a very strong position to provide the sort of assessment, advice and representation that a claimant needs.  Furthermore, that family lawyer can be well positioned to advise executors as to whether or not it is worth their while to contest a claim and, if not, how much they should reasonably offer to settle it.

Author: Stowe Family Law

Comment(1)

  1. lez says:

    in my knowledge of my dads will he wrote despite him having demensia and and pressured in to changing his will .. by an outsider of the family whom actually split the family up and also stopped other members of the family from seeing him

    The members of the family froze his bank accounts and stopped probate

    Despite this the bank still payed her everything in is account

    You can not get any help to protest a will unless you have plenty of money …you can not get legal aid…. as a member of the family tried infact family members or next of kin do not have a leg to stand on when it comes to a will left by the deceased

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