The death of a family member is undoubtedly a stressful and upsetting time for anyone. But it can be made all the more stressful when you’re unexpectedly omitted from the will of the deceased. Stats show an 8-fold increase in the number of contentious probate cases being brought before the High Court, and – with an aging population – this rise in family conflict over wills is one that’s being seen across the country.
It is, of course, generally accepted that people can leave their money or estate to whoever they choose; for some this can often mean omitting people or leaving a larger proportion of your estate to one person than another. However, there has always been a route to challenge this. The Inheritance (Provision for Family and Dependants) Act 1975 sets out that family and dependants can challenge a will if they believe they have not been given adequate financial provision.
Ilott v Mitson
In some cases, when family ties are strained, an individual may choose to leave a large proportion of their estate to charity. This is a trend that is on the rise. When this happens, it can be upsetting to family members who believed they were to inherit.
A recent case that demonstrates this point in action is that of Ilott v Mitson. In this case, the deceased’s daughter, Mrs Ilot, had been estranged from her mother for 26 years, after she left home at the age of 17 to be with a man that her mother did not approve of. The deceased, Mrs Jackson, chose to leave nearly her entire estate, which amounted to around half a million pounds, to three animal charities.
Mrs Ilott’s claim was based on the fact that, as a daughter, she was should be able to rely upon the inheritance by way of financial entitlement. Whilst Mrs Ilot had not been in contact with her mother for many years, the Court found that her financial needs were extreme, far more so than the charities that were to benefit. The Court eventually awarded her the sum of £143,000, which would enable her to purchase her home from the housing association, as well as a £20,000 lump sum.
Challenging a Will
The Inheritance Act 1975 sets out exactly who is entitled to bring a claim against a will, including spouses, children, civil partners, cohabitees and dependants. They are able to claim on the grounds that the deceased failed to make ‘reasonable financial provisions’ for them. The Act also sets out factors the Court must take into consideration when deciding whether the financial provisions made are reasonable. These include:
· The financial needs of the applicant
· The obligations of the deceased toward the applicant
· The size and nature of the estate
· Whether the applicant has a physical or mental disability
Claims can also be brought to challenge the validity of the will. For example, when you suspect the person making the will may have been unduly influenced or pressured, or if they were suffering from dementia or another illness which may have impaired their ability to think clearly whilst making the will.
How can I avoid challenges like this?
Whilst any will can be challenged, it is important to keep your will detailed and up to date so that your intentions and reasoning are clear, especially if there has been a change in family dynamics. If you worry that your will may be contested, having it written by an experienced solicitor will go a long way in helping your will stand up in court, should it be challenged.
Undoubtedly the best way to avoid bringing additional stress to loved ones is to talk them through the decisions behind your will as you are making it. This way you can make sure they fully understand your reasoning and manage their expectations when it comes to inheritance.
Whether you’d like a detailed will written, or you’re looking to contest a will that you believe may be invalid or one which fails to make reasonable financial provisions, our experienced solicitors can help. Call us on 01702 477 106 to arrange a free 30-minute consultation at our offices in Leigh-on-Sea or Rochford if you are seeking legal advice in this capacity.