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Challenging times: what happens when family members are cut out of a Will?

View profile for Lauren Godfrey
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High profile inheritance disputes follow celebrities and the super-rich as surely as night follows day.

Salvador Dali’s body was exhumed last year for a DNA test after a woman claimed to be his daughter and entitled to a share of his $1bn estate.  Former South African President Nelson Mandela left the bulk of his estate to his current wife, but his late ex-wife Winnie challenged the Will, claiming that a country home was rightfully hers.  The children of Robin Williams, from his first and second marriage, found themselves in a legal battle with his third wife over distribution of his $100m estate. 

However, such challenges are not the exclusive domain of society’s most affluent. 

Many of these disputes arise from re-marriage, where children or spouses from different relationships challenge a decision that they feel is unfair. In figures published by the Royal Courts of Justice, claims under the Inheritance Act 1975 rose by almost 40% in 2016. 

Regardless of the opinions of potential beneficiaries, under English law an individual can leave their assets to whoever they like. However, if a spouse, child, cohabitee or other dependant can show they have not been left adequate financial provision under the Will of a deceased person, a claim can be made under the Inheritance (Provision for Family and Dependants) Act 1975. 

The terms of the Act can also be used to make a claim when there is no Will.  Here, intestacy laws come into play, which determine how the estates of those who die without having made valid Wills are distributed.  As these are not reflective of modern relationships, cohabitees or civil partners will find themselves excluded and a claim may be the only option available.

Where a claim is made under the Act, the Court can exercise discretion and award reasonable financial provision out of the deceased’s estate, whether there is a valid Will in existence or not. However, two recent cases highlight the challenges involved in predicting the outcome of such action.

For Carole Anne Taylor, who lived with her partner James Redmond for seven years before his death, a claim for financial provision was successful. She was able to show they had lived as a couple and she had cared for him when his health failed, and that she had limited retirement income and nowhere else to live. The estate had been left to Mr Redmond’s two daughters, who insisted on selling the property the couple had shared, forcing Ms Taylor to move in with her son. 

The daughters challenged the initial ruling, arguing that Taylor was just one of many girlfriends. However, the judge said their evidence lacked credibility and ruled that Taylor should receive regular payments to top up her pension income and a capital sum to enable her to buy a property, with the property reverting to the daughters upon her death.  

In contrast, when Danielle Ames claimed that her father should have provided for her, instead of leaving his entire £1m estate to his second wife of 30 years, she was unsuccessful.  Her claim was based on having previously worked for one of her father’s businesses and his ongoing contribution to her maintenance. She argued that being left out of his Will left her facing crushing debts and a shortfall of £2,000 per month.  She claimed £300,000 as reasonable financial provision but failed to convince the judge, who dismissed the case and stated that her lack of income was a ‘lifestyle’ choice. The judge also questioned the extent of the contact and the warmth of the relationship she had with her late father.

Such disputes can often stir strong emotions and foment a sense of injustice but each case is judged on the facts.  Therefore, claims must be credible and based on reliable evidence in order to be successful. 

Time conditions must also be met.  Any claim for financial provision under the Act must be made within six months from the date that probate is granted, which is generally three to six months from the date of death.  For a cohabitee to claim, they must be able to prove they lived as husband and wife for at least two years before their partner died. 

As the saying goes, planning is everything. To help prevent the possibility of inheritance claims, estate planning involves having properly drafted and executed Wills up to date which are kept up to date.  It may also be worth sharing your plans with your extended family. A difficult conversation now may potentially forestall any later disputes.

If you require advice in planning your estate, making a Will, or contesting an existing Will, please contact us on 01733 888888.

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