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Challenging times: what happens when family is cut out of the will?

19/07/2018

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.

In figures published by the Royal Courts of Justice, claims under the Inheritance Act 1975 rose by almost 40 per cent in 2016.  

Craig Ridge, a Partner in our Disputed Probate team, looks at the issues that can, in fact, affect any family:

Some of the names to have made headlines over disputed probate 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 there was actor Robin Williams, whose children of his first and second marriage found themselves in a legal battle with his third wife over 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.

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 whomever they like.   

However if a spouse, child, cohabitee or other dependant can show they have not been left adequate financial provision a claim can be made.

Depending upon the circumstances, 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 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. Each case tends to turn on its own very particular circumstances, and it’s important that you have a credible, reliable claim. 

There are, however, 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, which is generally some three to six months from the date of death. 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.

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. 

A specialist lawyer will highlight any areas that may lead to challenge later, and help you work through the possible scenarios. They may also be able to suggest arrangements that will satisfy what may have appeared to be irreconcilable claims. 

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 are already strained, but it may potentially forestall any later disputes. 

For more information or if you need support, contact Craig on 01902 392402 or c.ridge@fbcmb.co.uk.

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