Disinheritance and the law: Just how binding is a last will and testament?

Family Law|November 12th 2018

Theo Hoppen, Senior Solicitor at the Stowe Family Law Harrogate office joins us on the blog to look at issues surrounding inheritance and wills.

When Melita Jackson passed away in 2004 she left an estate valued at just under £500,000. Two years previously she had made her last will that disinherited her estranged daughter (Heather Ilott) and instead left most of her estate to three animal charities.

What followed was a long and protracted court battle that took over 10 years and ended up in the highest court in the land, the Supreme Court and the ruling that the disinherited daughter should receive some financial provision.

As a family lawyer, one of my specialisms is cases where there are an inheritance, wills, trust and estate issues, I find that people are often shocked to hear that the court can go against the deceased’s wishes and override the terms of his or her will. Surely you can leave your money to whoever you please?

Well actually, in some cases it turns out you can’t. The Inheritance Act of 1975 was intended to make financial provision for those who had not inherited due to no will, been left out of a will or not been left as much as they need. It allows people to make claims against an estate if they have not been ‘reasonably financially’ provided for.

Today, there is a surge across Britain of inheritance disputes and I have noticed the number of cases increasing in the Harrogate area.  And whilst every case I work on is different, I can see two main factors driving this:

Families are more complicated: With a high divorce rate (it is dropping now) over the last two decades, there has been a rise in second and third families who don’t always agree. I have worked with a number of middle-aged children whose Mum or Dad have remarried and they are worried about their inheritance.

House prices: Today house prices are high enough that virtually every homeowner leaves an estate to fight over.

So, what do you need to do to make a claim?

The first thing is to obtain a copy of the will, if there is one.   You then need to try and find out about the assets within the estate and what they are worth.  I can help you obtain this information if you are unable to do so yourself.  It is only when this information is to hand, that I can advise you with any certainty as to whether you have a claim.

The basis of the claim is that reasonable provision has not been made by the deceased for the claimant.

All sounds simple, well unfortunately not. You and your solicitor will need to prove to the court that the provision you have been left, if any, is not sufficient to meet your needs.  There are a number of factors the court will take into consideration including the size of the estate, the financial needs of the applicants and any physical or mental disability of the applicant and more.

The earlier you seek legal advice the better. It is much easier to sort out a claim before property, land, money and assets have been distributed. There are also certain time limits. This will depend on the type of will and claim but can be as little as six months. If you delay pursuing a claim, the court can refuse to hear your case meaning you cannot challenge the will.

How I can help?

I have worked with many clients to make successful claims under the Inheritance Act. I can also help if you are an executor or beneficiary and someone else is contesting the will. The Supreme Court’s decision in the Ilott v Mitson certainly highlighted the need for anyone making a will, especially one that may prove controversial, to always seek legal advice to safeguard (as far as possible) the assets within the will against any potential beneficiaries who may claim.

You can contact Theo below or visit: stowefamilylaw.co.uk

Author: Theo Hoppen

Theo Hoppen is a Senior Solicitor in the Harrogate office. He advises on all aspects of family law with a specialism in representing clients in relation to claims against estates under the Inheritance Act.

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