Rising house prices are thought to be one reason behind a surge in inheritance disputes. The rise in the value of property has boosted the value of estates and given family members more of an incentive to dispute their inheritance – or lack of it.
The high divorce rate (around 42% according to the ONS) and more complex family structures have also been blamed as a contributing factor to the growing number of disputes. With the ‘nuclear family’ no longer the norm, members of extended step families are now stepping in to claim what they believe they should be entitled to inherit.
A further aggravating factor is the increase in life expectancy which has led to some elderly parents concluding that their children – likely to be at least middle-aged at the time of the parent’s death – do not need their money. Consequently, parents are leaving the money to charity and an increasing number of grown-up children are challenging these generous donations.
According to London Firm Hugh James, there were 116 cases of children disputing their parent’s estate in 2015, compared to 104 in 2014. There were in fact more cases than the numbers reveal, but some were settled out of Court.
The figures show that your Will may not be the final word on how your assets and possessions are distributed.
“Can my Will be challenged?”
Any Will can be challenged for a variety of reasons.
- The person lacked testamentary capacity when they made the Will – this means that they were not of sound mind when they made the Will.
- The Will was not executed properly. This means it did not meet all the requirements for Wills. A valid Will must be:
- In writing.
- Signed by the testator (the person making the Will) or signed by someone else in their presence with their direction.
- The testator must intend their signature to give effect to the Will.
- Their signature must be made or acknowledged in the presence of a minimum of two appropriate witnesses, who are present at the same time.
- The witnesses must attest and sign the Will or acknowledge the signature in the presence of the Testator, but not necessarily in the presence of other witnesses.
- The person did not have knowledge of, and approve of, the contents of their Will.
- The person was under undue influence, coercion or duress to make the Will or to leave certain gifts in the Will.
- The Will is fraudulent or a forgery.
- The Will does not give effect to the person’s wishes. This might be because it was drafted negligently.
If none of the above apply, it is also possible to challenge a Will using the Inheritance (Provision for Family and Dependants) Act 1975. This allows certain people to apply to the Court for a greater share of the Estate. The Court will consider the size of the Estate, the person’s financial needs, and the financial needs of the other beneficiaries.
Not everyone can apply for reasonable provision under the Act, however. The Act makes provision for:
- Spouses/civil partners
- Former spouses/former civil partners if they have not remarried/entered a new civil partnership and if they did not receive a final financial settlement following the breakdown of their marriage/civil partnership with the deceased
- Children of the deceased
- A person who was treated by the deceased as a child of the family
- Someone who was dependent on the deceased before their death, wholly or partly
- A cohabitee if they were living with the deceased for at least two years
Applications must be made within six months of Grant of Probate or Letters of Administration.
A number of high profile cases have suggested that the Court is sometimes willing to effectively rewrite a Will where they believe a moral obligation exists to maintain a dependent.
In one complex case which is still ongoing, Heather Ilot challenged the Will of her mother Melita Jackson who she had not had a relationship with since she was 17. The mother left the bulk of her estate to three charities (the RSPCA, the RSPB and the Blue Cross) and set out in a letter of wishes that she did not want Heather to inherit at all. Heather had, in fact, attempted to reconcile the relationship on more than one occasion with no success.
The Court awarded the daughter £163,000 of the £486,000 estate, enough money to purchase her council house without affecting her means tested benefits. However, the charities have now been granted the right to appeal. The Supreme Court will hear the appeal, although this is not expected to take place until next year. The ruling is expected to set a benchmark for inheritance claims going forward.
In another case, a group of animal charities (Redwings, the Chilterns Dog Rescue Society, the Blue Cross, the PDSA, the International Fund for Animal Welfare, the Donkey Sanctuary and World Animal Protection) appealed against a decision to award a property to the nephew of the deceased. The deceased – June Fairbrother – made a Will leaving small gifts to her family and left the residue of her estate to the charities. The nephew, Kenneth King, claimed that a few months before her death she gave him the deeds to her house, saying that it was his after her death. If this was accepted, the charities stood to lose the majority of money that had been left to them. The appeal was allowed on the basis that the earlier High Court ruling did not establish a deathbed gift. However, the nephew still successfully claimed as a dependent under the Inheritance Act and was awarded £75,000 from his Aunt’s estate.
What you can do
Although many people use DIY Will kits that can be purchased online or from stores such as WH Smith, the above cases and growing numbers of Wills being challenged send a very clear message to those making a Will: speak to a professional before making your Will so that you can fully understand the implications of what you intend to do. This is particularly the case if you intend to write a family member out of your Will, leave them only a token gift or leave them a smaller share than other beneficiaries of the same class.
Related post: “Is my Will final?”
We have locations across the UK and we can also cater for home visits. We would be happy to review your current Will with you, without obligation – even if it was made with another firm.