Challenging times: what happens when family is cut out of the will24-Jul-2018

By Gillian Knowles Head of Wills, Trusts & Estates

High profile inheritance disputes follow celebrities and the super-rich as surely as night follows day, but such challenges are becoming increasingly common, whatever the values involved.

Some of the names to have made headlines include the artist Salvador Dali, whose 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. Or actor Robin Williams, whose children of his first and second marriage found themselves in a legal battle with his third wife over the distribution of his $100m estate. 

As with Mandela and Williams, many of these disputes arise because of re-marriage, where children or spouses from different relationships challenge a decision that they feel is unfair, and with rising property prices, often families can see more to fight for. In figures published by the Royal Courts of Justice, claims under the Inheritance Act 1975 rose by almost 40 percent in 2016.

And while many people think they can challenge a will on the basis that a parent should leave their estate to their children, or because they lived together as if they were married, the basic rule under English law is still that 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.

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, but two recent cases highlight the challenges involved in predicting the outcome of such action.

These disputes can often excite strong emotions and a sense of injustice, but it’s important to get advice before you start, as you may be in for the long haul. Each case tends to turn on its own very particular circumstances, and it’s important that you have a credible, reliable claim.

There are also time conditions to be met. Any claim for financial provision under the Act must be made within six months from the date that probate is granted. Also, 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.

If you want to leave the gift of family harmony, the best option is to deal with the difficulties in advance. When you are estate planning, make sure your will is kept up to date and that it is properly drafted and executed. Our specialist solicitors will highlight any areas that may lead to challenge later, and help you work through the possible scenarios.

Finally, if you do make decisions that you know to be contentious, then think about sharing your plans with your extended family. It may mean a tough conversation, particularly if relations have soured following a divorce, but it may potentially forestall any later costly disputes.

For more information about writing or updating your Will, please contact a member of the Wills, Trusts & Estates Department at Cullimore Dutton Solicitors on 01244 356 789 or email info@cullimoredutton.co.uk

 

Please note: This is not legal advice; it is intended to provide information of general interest about current legal issues.