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Changing family structures leading to more people contesting their late parent's Will

View profile for Kevin Horn
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Historically, the revelation to children that their parents have not left them as much as they were expecting to be left in their Will has inevitably lead to disappointment, but not litigation. This is changing however as recent figures have shown that the number of Wills being contested by disgruntled children is on the rise.  Kevin Horn, Private Client Partner, here reviews the reasons why this may be, what people can do to prevent these situations, and how to act if you find yourself in this situation.

Contesting a Will under the Inheritance Act

Figures released by the Royal Courts of Justice have shown that in 2016, 158 claims were issued under the Inheritance (Provision for Family and Dependants) Act 1975 which provides the basis for claims by children for financial provision from a deceased parent’s estate. This is a significant rise on previous years; up from 116 in 2015 and 104 in 2014.  “The Act requires the individual to demonstrate that the provision made by the deceased for them in their Will fails to amount to reasonable financial provision” begins Kevin.  “In reaching it’s judgment, the Court will take into consideration all the circumstances including the specific financial resources and needs of both the claimant and any other beneficiaries, the obligations of the deceased towards the claimant, the size of the deceased’s estate as well as any physical or mental disability of the claimant.”

The significance of Ilott v Mitson & Others

There is a belief that the rise can also be attributed towards the case of Ilott v Mitson & Others.  “In this case, a mother left the majority of her estate, worth approximately £486,000, to three different charities,” continues Kevin.  “She had been estranged from her daughter, Ms Heather Ilott aged 50, for over 30 years and made specific reference in her Will that she did not wish her to inherit.”

Ms Ilott contested the Will, and the Judge’s initial decision handed over £50,000 to her as he ruled that there was inadequate financial provision made for her based on her heavy dependency on benefits and raising five children.  That signalled several years of litigation. Firstly Ms Ilott successfully appealed. The Court of Appeal eventually awarded her appreciably more money at the expense of the charities named in the deceased’s Will.  The charities decided to appeal. The Supreme Court eventually ruled in their favour restoring the original award.

“Whether the Supreme Court decision will result in a sharp decline in the number of cases being issued remains to be seen,” explains Kevin.  “Some commentators believe it will whilst others have expressed the view that the Supreme Court simply took the opportunity to re-state the principles which have not changed in the forty years since the Act was introduced, and that cases which would have been brought before the decision was announced will continue to be brought on merit. Every case will be different; this case might have had a different outcome if the named beneficiaries had not been charities.

“If you find yourself in a position where you feel the provision that has been made for you is inadequate and you wish to contest the Will, then we can offer advice as to the merits of your claim, helping you understand the process and the possibilities of success.”

The remarriage of one parent after the death of the first can prove to be a fertile breeding ground for claims particularly where this results in step-children.  “In this situation, animosity can arise between the children and the step-children particularly where there is a large estate and they feel that their share is not fair or reflective of their position in the family,” continues Kevin.  “Further complications arise due to the fact that we are an ageing population; parents may believe that their adult children are financially settled and not in need of any inheritance, so they look elsewhere for friends or charities to benefit instead.”

Life Interest Trust Wills

“Planning for a way to avoid claims against an estate is always something we would recommend,” concludes Kevin.  “We would suggest that families discuss their plans before it is too late.  This means there will be no surprises when the time comes and any disputes could possibly be solved before a Will is even written or adjusted.  We would also recommend that married couples or civil partners consider a so-called Life Interest Trust Will.  In simple terms, under this type of Will both individuals hold a separate share in their property, usually 50%.  When one of them dies, their share is placed in a Trust (where their children are normally the beneficiaries), with the surviving spouse being afforded the right to live in the property for their lifetime.  If the surviving spouse goes on to re-marry and have more children, then when they die, the first parent’s 50% share having been ring-fenced in the Trust can’t pass to the children of the second marriage, meaning that the children of the first are sufficiently provided for and as a result, a claim against the estate is much less likely.”

The team at Warner Goodman understand that all discussions of this nature will be sensitive and difficult to have.  If you have questions about contesting a Will or you are considering a Life Interest Trust Will, you can contact Kevin or the rest of the empathetic and pragmatic team at Warner Goodman by calling 01329 222075 or emailing privateclientenquiry@warnergoodman.co.uk.

ENDS

This is for information purposes only and is no substitute for, and should not be interpreted as, legal advice.  All content was correct at the time of publishing and we cannot be held responsible for any changes that may invalidate this article.