In the first of a special two part series, solicitor Duncan Watson examines how and why families dispute wills and inheritances.
Once relatively rare, wills and inheritance disputes have become increasingly common in 21st Century Britain. The latest available figures from the Office for National Statistics are startling: in the seven short years between 2006 and 2013, there was an almost 780 per cent rise in inheritance disputes and an even more amazing 920 per cent rise in the number of probate disputes – court cases in which the validity of a will is called into question.
And of course, these startling increases have been reflected in the number of clients who have come through our own doors here at Stowe Family Law, disappointed by family wills which have not resulted in an inheritance for them.
This phenomenon may reflect the rise of the ‘blended family’, in which parents who have married again or entered new relationships share their homes and lives with children from earlier marriages. Such complexities may lead to conflicting priorities when the time comes to draw up a will. What should the person’s new spouse or partner receive, compared to the children of their previous marriage? These are difficult questions and poor legal advice can leave the resulting will vulnerable to claims and counter-claims.
If someone believes that “reasonable financial provision” has not been made for them in a will, (or by the rules that apply if the deceased dies without leaving a will), they can potentially bring a claim, arguing that a financial award should be made in their favour.
The concept of ‘reasonable financial provision’ is set out in section 1 of the Inheritance (Provision for Family and Dependents) Act 1975. This states that a person:
“… may apply to the court for an order … on the ground that the disposition of the deceased’s estate effected by his will or the law…or the combination of his will and that law, is not such as to make reasonable financial provision for the applicant…”
The law specifies which people who can bring such claims to court: the deceased’s children (or anyone treated by them as their child); their spouse or former spouse (even if they have divorced); anyone they cohabited with as ‘husband and wife’ for the two years immediately prior to their death; and anyone who was financially reliant on the person who made the will. So even an unmarried partner can claim, even though the ‘rules of intestacy’ do not recognise cohabitees.
The latter are applied when someone dies without leaving a valid will, and define who gets what.
When assessing a claim the court will look at whether it would have been reasonable for the person who has died to make financial provision for the person who has complained, referred to as the ‘claimant’. The Inheritance Act sets out a number factors to be taken into consideration. It is important to remember the claimant may have access to funds from other sources, for example through a life insurance policy. The situation should always be considered holistically when estate planning is being considered.
Marital or ‘nuptial’ agreements could also be taken into account by the courts if a dispute occurs around a will or inheritance. Under a draft bill, judges will be required to give due consideration to agreements in which the parties in a marriage have specified what the survivor should receive on the death of their partner.
If prepared in time such agreements could bolster the terms of a will and make it harder to challenge them, particularly in a blended family situation.
Joint ownership of a home – usual in a marriage – can also lead to upset and disputes if a will specifies that someone other than the spouse inherit the deceased person’s half of the property. This is because jointly owned homes will often pass to the surviving spouse irrespective of who the deceased wanted their share to go to. So on purchasing a house it’s important to make sure that the mechanics of joint ownership are fully understood, and most importantly what would happen in the event not only of family breakdown, but death as well.
An Inheritance Act claim must be brought within six months of the ‘grant of probate’ being issued. This is a document issued by the court that confirms a will has been proved to be valid and which authorises the executors to deal with certain assets, such as the home.. Only in exceptional circumstances will the courts allow a claim to be made after the six months period has expired, so obtaining early advice from a solicitor specialising in such claims should be a priority.
Suppose there is no Will and the deceased died “intestate”?
If the person dies leaving a spouse or civil partner but no children, then the spouse or civil partner will inherit the entire estate. If there are children, the estate is split, so that the first £250,000 passes to the spouse or civil partner, and the balance is then divided in two between that person and the children at age 18. But these rules can leave a dependent spouse in real financial difficulties and can even lead to the sale of the family home, a situation the deceased person almost certainly would not have wanted. If the survivor and the children cannot resolve the dispute, the former may be forced to bring a claim under the Inheritance Act.
Cohabiting couples who have not made a will face an even starker situation. Under current law, they have no automatic inheritance rights, and may have to make a claim under the Inheritance Act to obtain what the deceased would have wanted them to have.
Additionally, a spouse or cohabitee may in some circumstances be able to claim a ‘beneficial interest’ in the home, even if they were not listed as an owner of it. This principle was vividly illustrated in Graham York v York, a case we reported on earlier this year. It concerned a woman who had lived with her partner for less than 33 years, then claimed partial ownership of her former partner’s home after his death. She was granted 25 per cent of the property but unsuccessfully sought 50 per cent.
The importance of legal advice
The above represent just some of many reasons disputes revolving around the death of a family member reach the courts. There are many others, including the deceased person’s competency to leave a will at all.
It is a real minefield and certainly not an area I would ever advise anyone to try and tackle on their own with an off-the-shelf will. People do it, but what can happen after they’re gone would probably horrify them.
I would advise anyone who wants to make a will, to speak to a specialist solicitor as soon as possible. Court claims can be very expensive and a solicitor who knows what they are doing can deal with matters very efficiently, and achieve a better outcome than any home-made, internet, or shop- bought will. Sensible, practical advice can make all the difference.
Image by McKay Savage via Flickr