OTS Solicitors Wills and inheritance disputes team
To speak to a member of the London based OTS Solicitors Wills and inheritance disputes team about an inheritance dispute or contesting a Will, please call us on 0203 959 9123 for a discussion about how we can help you or contact us through our online enquiry form.
Inheritance disputes and claims
If you feel you have been unfairly left out of a Will, or a legacy in the Will is not adequate to meet your needs, you may have a potential claim under the 1975 Inheritance (Provision for Family and Dependants) Act (‘the Inheritance Act’).
Claims can arise in many different circumstances, such as:
A deceased dying without a Will (intestate) who was in a cohabiting relationship with a partner who has young children from a prior relationship. The cohabitee and her children would not receive anything under intestacy rules as they are not related to the deceased;
A deceased not updating his/her Will after separation from their spouse and therefore leaving nothing in the Will to his new partner or young child;
A deceased being under a court obligation to pay spousal maintenance to a former spouse and not taking out life insurance cover for the spousal maintenance payments or making any provision in the Will;
A child being excluded from a Will because of a family falling out or being left a small legacy in comparison to other siblings and relatives.
There are many other family scenarios where either deliberately or accidently a deceased has not made financial provision for a relative or loved one in their Will, or the provision is limited because the Will was not reviewed and updated, or the deceased did not make a Will and the intestacy rules are thought to be unfair and make inadequate financial provision.
Inheritance disputes and sharing estates
It is often assumed, particularly by international clients, that a testator is under a legal obligation to share his estate in accordance with the law. That is because in many overseas countries the law states you must leave a percentage of your estate for example to your spouse or children.
In English law, a person making a Will (the testator) can leave their estate as they wish. They are also not under a legal obligation to make a Will though it is best to do so. However, the 1975 Inheritance (Provision for Family and Dependants) Act enables the court to order provision for eligible claimants who say that the Will or intestacy rules do not make adequate financial provision for them.
Inheritance dispute claimants
The Inheritance Act says that certain persons can bring a claim for financial provision against the estate of a deceased, namely:
The husband, wife or civil partner of the deceased; or
The former husband, wife or civil partner of the deceased provided the spouse or civil partner has not remarried and did not agree to a financial clean break at the time of their divorce or dissolution of civil partnership; or
Anyone who was living in the same household as the deceased as the husband or wife of the deceased for at least two years prior to the death of the deceased; or
A child of the deceased (this includes an adult child); or
A child who was treated by the deceased as a child of the family during a marriage, for example, a step child; or
Anyone who was being maintained by the deceased immediately prior to the death of the deceased, for example, a relative who was being looked after by the deceased.
If you are not certain about whether or not you fall into any of those categories it is best to take legal advice to see if you can bring an Inheritance Act claim and the likely prospects of success.
Inheritance Act claims and reasonable financial provision
An eligible claimant can only bring an Inheritance Act claim if the deceased’s Will or intestacy rules do not make reasonable financial provision for the claimant. What amounts to reasonable financial provision depends on the amount of the estate, the deceased’s family and personal circumstances and other factors.
Deciding an Inheritance Act dispute
If an Inheritance Act claim is contemplated, mediation is normally attempted to see if an agreement can be reached. If not, the court will decide if reasonable financial provision was made for the claimant.
The factors the court takes into account when deciding on whether reasonable financial provision was made by the deceased depends on who the claimant is. That is why it is important to get early specialist legal advice from Wills and inheritance dispute solicitors on the potential claim, the litigation risks and the potential costs so you can make an informed decision about the claim and reach the best solution for you.
Inheritance Act disputes time limits
There are strict time limits to bring a claim, and so it is important that you act quickly if you think you want to make a claim.
An Inheritance Act claim must be brought within six months of receipt of the grant of probate. If you are out of time to make a claim, then you may still be able to claim by making an application to court to bring proceedings out of time. If you think you may be out of time, it is best to take urgent legal advice to see whether it is likely that you will be able to bring the Inheritance Act claim out of time.
If an executor distributes the estate before the expiry of the six month time limit and a claim is brought then the executor could be held personally liable. That is why it is vital that executors get legal advice on probate and on Inheritance Act claims or if anyone is contesting a Will.
Avoiding inheritance disputes
To minimise the risk of a claim being made it is important that specialist professional advice from Will solicitors is taken at the time of making a Will and that Wills are reviewed and updated when personal and financial circumstances change.