Have I lost out? Focus on inheritance disputes.

Michael Shiers January 5, 2016

Disputes over family Wills and inheritance are becoming more frequent. You may well have heard about the recent case of Heather Illot who had been cut out of her mother’s Will leaving her inheritance to three animal charities.inheritance

Mrs Illot successfully challenged the reasonableness of her mother’s Will and eventually was awarded £164,000.00 from her mother’s Estate. Mrs Illot’s case has reawakened public interest in these sorts of disputes and of course opinion is divided on the rights and wrongs of whether a Court should interfere with a person’s last wishes.

However, it is not the job of lawyers and Judges to decide the rights or wrongs of the law. We are here to apply the laws to the facts of each case.

The make up of families is much more complicated these days with second and even third marriages becoming much more commonplace. Additionally, the increasing value of property prices often means that the Estate can be quite sizeable.

The basis of Mrs Illot’s case was that she was entitled to a share of her mother’s fortune on the basis that her mother’s Will did not make reasonable financial provision for her. She was able to do this by relying on the 1975 Inheritance Act.

This Act of Parliament provides a route to claim for certain categories of people who have been either cut out of a Will or where they feel that they have not been left enough under the terms of the Will. If the Court comes to the conclusion that the Will or does not make adequate reasonable financial provision for the Claimant then that person is entitled to apply to the Court for a share of the estate. In effect the Court can re-write the Will of the deceased person. The Court has very wide discretion in this regard and has great flexibility in what it can order. It can, as it did in the case of Mrs Illot, order a lump sum of cash to be paid to the Claimant. Alternatively, it can order regular payments (rather like maintenance in a divorce case) or it can order transfer of properties. Sometimes the Court will order that the person should have Ward of Court an interest in property or money during their lifetime.

Who can claim?

The categories of claimants broadly include, spouses, civil partners and former spouses and civil partners who have not re-married, certain co-habititees, children and anyone who was being maintained by the Deceased prior to death. Whether you can claim is sometimes not straightforward but if you think you can claim you should seek expert advice.

No Will?

If a deceased person does not have a valid Will, then the estate will be divided in accordance with the Rules of Intestacy. Claimants who feel that these Rules do not make reasonable provision for them are also able to use the 1975 Act to apply for some share or a greater share of the Estate.

In summary, the Court can be very flexible in order to try to achieve what it considers to be a fair and just result.

In many of these cases Nash & Co can act for applicants on a “No win – no fee” basis, which takes the worry of legal costs away from our clients.

Is the Will Valid?

The other sort of case where Nash & Co advises on a frequent basis is where family members are challenging the validity of a Will which had been made. There are a number of reasons why a Court may decide that a Will in invalid.

A common challenge is on the basis that the person who made it did not have the necessary legal capacity to make the Will or that they did not understand and approve of the contents of their Will. These cases are becoming more and more frequent as people live longer and longer. If we can prove on your behalf that the person who made the Will did not have the requisite sound mind perhaps by reason of suffering from dementia or some other illness then the Court will set aside the Will on the basis that the person making it did not have the appropriate legal capacity.

There are other reasons why a Court may set aside a Will, perhaps that the statutory formalities regarding number of witnesses have not been followed. This commonly occurs when people try to prepare a Will without proper legal advice.

In some cases it is alleged that the Will may be a forgery or perhaps undue pressure has been exerted on the person making the Will by another family member. Lawyers call this “Undue Influence”.

This area can be a legal minefield and prompt expert advice is essential for your own piece of mind. We have a dedicated team of lawyers at Nash & Co who can advise you on Will and Estate issues. Are you confident that your Will is valid and not open to challenge?

On the other side of the coin, if you feel that you have missed out or may have grounds for challenging a Will then please do not hesitate to give Mike Shiers a call in complete confidence and with no obligation.

Mike Shiers is a Partner (Non-LLP Member) at Nash & Co in Plymouth