Claims against an Estate and how to prevent it…

Following a persons death, relatives, dependants and others can challenge someone’s Will. They can do this by going to court and claiming ‘reasonable financial provision’ from the estate. Equally, if someone dies ‘intestate’ (they don’t have a Will) and beneficiaries are not happy about their inheritance (often the lack of), they may be able to make a claim under intestacy rules. 

There are a number of reasons why someone might want to claim against an estate.

Some of the most common reasons for a claim against an estate are:

• Lack of mental capacity – the person did not know what they were doing in giving away their property.
• Non compliance – the person did not comply with the legal requirements for making a Will.
• Undue influence or fraudulent calumny – the person was coerced or pressured into making the Will – or someone lied to them to get them to change their Will.
• Inheritance Act claims – you feel that the person who died should have provided for you.
• Promissory / proprietary estoppel – the person made you a promise which you relied on to your detriment, and they didn’t follow it through.

It’s a sad fact today, that many parents have children with whom they have a fractured relationship with, or no relationship whatsoever. 

We are quite often asked what can be done to ensure that an “absent child” can make no claim against a client’s estate after their death.

The Act under which a “disappointed” party makes a claim against an estate is the Inheritance (Provision for Family and Dependents) Act 1975. The Act states that a claim can be made against an estate by any of the following persons:-

• A spouse or civil partner;
• A former spouse provided they have not re-married or entered into a civil partnership;
• Any other person with whom the deceased was cohabiting continuously for the two years immediately preceding death as spouse or civil partner;
• A child;
• Any person “treated” as a child of the deceased;
• Any person who was being wholly or partly maintained by the deceased – his means they were making a substantial contribution towards their reasonable needs (whether in cash or with something else of value) up to death, on the basis that he or she had assumed responsibility for them. (The court will look at the type, value and purpose of the payments, and how long they were being made.)

This stresses the importance of a Will to benefit a “partner”, as they will not benefit under the intestacy rules, if you die without a Will.

Rather than making a claim against an estate for a fixed amount, any claim made under the provisions of this Act, is merely for “adequate financial provision”. It isn’t for the applicant to be putting a figure on the amount of their claim. This is for the Courts to determine, if an agreement cannot be reached “out of court” with the deceased’s Executors (if there is a Will) or Administrator (if there isn’t a Will).

Many clients believe that by including a small gift to the absent child that this will prevent them from being able to make a claim against the estate. This is not the case.

Any claim must be made within 6 months of Probate being issued to the Executors. For that reason, any Executor “should” delay distributing a deceased persons estate until this 6 month period has expired.

It is possible however for clients to put in place a structure to protect assets from any Inheritance Act claim. It is a detailed area of law and one which requires bespoke planning.

Mark Tucker, the founder of MT Legal Services has nearly 40 years of experience in matters regarding Wills and Probate. As a member of the Institute of Professional Will Writers, you can be sure that you’re in good hands when you employ MT Legal Services. We also offer a no obligation meeting to discuss your own family and financial circumstances, and to thereafter; offering solutions to suit you.

To book your FREE CONSULTATION, please get in touch!

T: 01604 591242

E: mark@mtls.co.uk