Building on our introduction to probate disputes and contentious probate, we delve deeper into this area of law and provide the details of some real-life cases and how inheritance disputes are dealt with in practice
Before going further, if you have not got a Will yet and wish to leave your estate to your loved ones, charities or others, it is often possible to minimise the risk of disputes arising and unexpected eventualities by proper estate and lifetime planning. Contentious probate disputes are often time-consuming, complicated, and can become expensive. Contact us to find out more about writing a Will.
I didn’t receive the inheritance I was expecting!
There could be any number of reasons why you did not receive the inheritance you were expecting.
It may be that someone simply did not make a Will, in which case the Rules of Intestacy, as laid out in our Intestacy Rules Flowchart will apply;
It may be that due to the negligence of the Will writer, the Will is not valid; or
It could be that the testator (the person making a Will) simply decided not to leave an inheritance to a particular person. In this country, you are entitled to do what you want with your assets, leaving them to whomsoever you choose. If someone chooses to exclude you from a Will, there is little that can be done, but it does not mean that certain individuals cannot make a claim against the estate for financial support.
The Inheritance Act – Claims by close relatives and dependants for financial support
Claims made under the Inheritance (Provision for Family and Dependents) Act 1975 are on the rise.
- This may be because the value of property is such that it is now “worth” arguing over, and the older generation are more likely to own property outright than the younger generation, who are desperate to get onto the housing ladder.
- It may also be that due to the increasing number of ‘blended families’, with children from previous relationships coming together to form a new family unit, the testator has difficult choices to make about who to leave their estate to.
- Another issue that often arises in tandem with claims under the Inheritance Act, especially with unmarried couples and blended families, is when someone has contributed financially towards a property solely in the name of the other person. What happens to their financial contribution and the property when the legal owner of the property dies, especially if they have left the property to someone else?
It is therefore often the case that a claim for promissory estoppel or under the Trusts of Land and Appointment of Trustees Act 1996 can arise at the same time, these are called ToLATA claims for short.
Whatever the case, and irrespective of the existence of a valid Will, there are certain individuals who will always have a right to apply for maintenance and financial provision from an estate if their inheritance (if anything) is insufficient to meet their financial needs.
We hasten to add that this is not the same as saying that such individuals would always be successful in their claim, but there are plenty of examples in case law of individuals who, by “average” standards, are financially well off but still do not think that the Will as drafted leaves them a sufficient sum for their ongoing maintenance.
The individuals who are entitled to apply for financial provision under the Inheritance Act include:
- A spouse or civil partner;
- Children (both minors and adults), including adopted children or someone who has been treated as a child of the marriage (step-children for instance);
- A former spouse or civil partner – if they have not remarried;
- Someone living with the deceased for at least two years before their death as their spouse (sometimes colloquially referred to as a “common law spouse”); or
- A person who was being financially supported by the deceased.
Inheritance Act Claim Time Limits
Whilst sometimes it is possible to obtain the Court’s permission to issue a claim “late”, or to agree for further time to issue, the basic position is that an applicant under the Inheritance Act will have six months to make their claim, starting from the date probate was granted.
It is important to consider a claim under the Inheritance Act as soon as possible. Whilst for most people, they will want time to grieve and take stock of matters, approaching your solicitor sooner rather than later if you are considering an application under the Inheritance Act can often save time and cost in the long run.
We have set out below the details of a few recent cases in this area of law, to give you a flavour of what happens.
Past the deadline to issue a claim: Thakre v Bhusate (2020)
As mentioned, a prospective applicant will have six months from the date of the grant of probate to formally pursue their claim. However, the Court does have discretion to extend this deadline. In the case of Thakre v Bhusate, the deceased’s widow was granted permission to bring a claim more than 25 years out of time, and 30 years after her husband’s death.
It is possible to apply to bring a claim out of time under section 4 of the Inheritance Act in limited circumstances, and the court has an unfettered discretion to allow such applications. The court will only grant permission if it is satisfied that:
- there is a meritorious claim, and
- there is no prejudice to anyone in the claim being pursued (usually where the estate is still yet to be distributed).
Then they will consider the reasons for the delay in detail.
In this case, the Judge made it clear that a lengthy delay without reasonable explanation is still likely to result in an application being refused. The Judge was satisfied that negotiations for settlement of the widow’s claim had been ongoing throughout all of the years in question and that the beneficiaries had been being obstructive, which is part of the reason for the Court granting permission.
Interim payments: Weisz v Weisz (2019)
Section 5 of the Inheritance Act enables the Court to make an “interim provision”. This is when the applicant has an immediate or urgent financial need to address but it is not possible to establish exactly what financial provision to award overall yet. This can often be an important thing to consider, as claims under the Inheritance Act can take a very long time to resolve or reach trial.
In this case, the value of the estate was approximately £4m. The applicant was the deceased’s widow. She was awarded a sum from the estate to assist her in meeting her legal fees and to cover her day-to-day living expenses, pending the conclusion of her claim. She promised to repay these sums in the event her overall claim was unsuccessful, or the value of her interim provision exceeded her total award at trial.
Applications under the Inheritance Act can become costly, as they are complicated and involve a careful application of a number of criteria aimed at balancing the interests of the beneficiaries and the person applying under the Inheritance Act. However, because it often involves family and potential bitterness, objectivity and a commercial approach to matters can often go out of the window.
Cunningtons always bears this in mind and advises clients of the need to act both cost-effectively and proportionately in all cases.
What was particularly interesting about the case of Weisz v Weisz was the Judge’s comment on the legal costs. He expressed some degree of concern at the legal costs that the parties had incurred in the context of the total amount being sought in the interim provision. The judge commented that:
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The divorce crosscheck: Kaur v Singh (2023)
In this case, a devoted and long-suffering wife and mother had been disinherited by her husband, who wished to leave his estate exclusively to his male heirs. Whilst entirely his right to do so, irrespective of anyone’s personal opinion on whether or not this was old fashioned, misogynistic, unfair or inequitable, as mentioned above, you cannot generally avoid the provisions of the Inheritance Act from applying, even with careful Will drafting and lifetime planning.
The reason why it is often difficult to prepare a Will with a view to avoiding any future claims under the Inheritance Act is mainly because to avoid the application of the Act, the only real way to do this is to make a reasonable financial provision for prospective applicants in the Will itself. What a “reasonable financial provision” is can be difficult to determine at the time the Will is drafted, especially as it is the financial circumstances of the beneficiaries and applicant at the time of the final hearing, which one of the more important things to consider by the Court. Clearly, a lot can change between the drafting of the Will and the death of the testator. A lot can also change between the date of death and the final hearing as well.
In this case, the applicant widow was awarded half of the estate by a judge. Another criterion applied by the Court in cases that involve the spouse of the deceased is the “divorce crosscheck”. Famously referred to in other cases as a “yardstick of equality”, the Court will consider what the position the spouse would have been in had the marriage ended by divorce rather than death. However, this has been firmly established as being just a “cross-check” and it does not mean that the spouse will automatically receive half of the estate.
In this case, Mr Singh and Mrs Kaur were married in 1955. They had seven children together. Two boys and four girls had survived the deceased and were all adults. The couple had a family clothing business but Mrs Kaur had no stake in it and she drew no salary. Mr Singh controlled the family and household finances and Mrs Kaur, who, with reference to the leading decision in White v White (2000) (a family law divorce case), was said to have made a “full and equal contribution to the marriage” by reason of the fact that she was a mother and homemaker. She was also therefore financially “dependent” on her husband.
The Court’s acknowledgement that Mrs Kaur‘s contribution to the marriage and family was vital, is perhaps strengthened by the judge’s reference not to Mr Singh’s wealth but, instead, to the “family wealth” which he notes was “built up during the marriage” and which was valued at £1.2m.
In applying the law to Mrs Kaur’s case, the judge considered this to be “the clearest possible case entitling [him] to conclude that reasonable financial provision had not been made for [Mrs Kaur]”. In doing so, he held that in this case, the “divorce crosscheck points unerringly towards an equal division of the assets”.
Get in touch with us – Cunningtons is here to help
This area of law can be complicated and sometimes, there are tight deadlines to
observe. Failing to meet deadlines can result in your claim becoming ‘statute barred‘ and no
longer capable of being pursued.
It is therefore generally advisable to approach a solicitor as soon as possible to consider the matter with you.
You may feel that it is too early or that you are not in the right frame of mind or place
to approach a solicitor so soon after someone passes away. We are used to dealing
with clients at such a sensitive time and when emotions are running high, and, of course, the advice you are given is confidential, so no one else needs to know that you have approached us until the time is right. We can discuss all of these points with you, in confidence.
Cunningtons will strive to ensure that your claim goes as smoothly as possible, endeavouring to achieve a satisfactory and cost-effective resolution of matters as quickly as we can. We are always mindful of the sensitive and emotional nature of the case.
Whether you are proposing to pursue a claim or are obliged to defend allegations regarding a Will or an estate, our experienced and friendly staff are here to help – so don’t hesitate to get in touch with us directly.
You can also speak to one of our Wills and Probate team at our branches in Braintree, Brighton, Chelmsford, Croydon, Hornchurch, Solihull or Wickford for help in writing your Will correctly that is resilient from contentious probate claims.