fbpx

Family dispute – have you been left out of a family Will?

Jun 15, 2021

Have you been cut out of your parents Will or your partner’s Will when you expected to receive something? Maybe your siblings who are better off financially than you have inherited all of your parent’s estate.

Families are complicated affairs and unfortunately the cracks that may or may not have been present become chasms on the passing of a family member and entrenched positions can make any kind of discussion very difficult.

Applying to contest Inheritance

The Inheritance (Provision for Family and Dependents) Act 1975 provides that a specified group of people can apply to the courts if they can show that the deceased person’s Will does not make reasonable financial provision for them. The application can be made even in the event of the deceased person dying and not having a Will if the effect of the intestacy rules would mean that reasonable financial provision has not been made for the person applying.

The group of people who can make such an application are as follows:

  • the spouse or civil partner of the deceased
  • the former spouse or civil partner provided that person has not remarried or entered into a subsequent civil partnership
  • a child of the deceased person
  • any person who is treated as a child of the family by the deceased person and this includes former relationships
  • any other person who immediately prior to the death of the deceased person was being wholly or partly maintained by the deceased person.

What will the courts consider to alter a Will?

When considering the term, “reasonable financial provision”, the courts will look at what is reasonable in all the circumstances of the case, so the courts will not necessarily look at the applicant’s specific requirements for maintenance.

As the leading case on this area of law shows Ilott v Mitson [2017] UKSC 17, the courts have wide powers to alter the terms of a Will whereas in this case, no provision was made for the daughter of the deceased. The deceased person in the Ilott case made no provision for her daughter as she had been estranged from her daughter for many years and therefore decided to leave her entire estate to a number of charities.

In subsequent cases on this area of law, the courts have arguably not been as generous as in the Ilott case and this is perhaps indicative of the fact that the courts want to deter warring families from having their day in court and in effect looking to the courts to arbitrate on perceived wrongs.

Conclusion

It is important to remember that Inheritance (Provision for Family and Dependants) Act claims are fact sensitive and the courts are concerned to establish whether reasonable financial provision has been made for a specified group of people and that is considered in the light of the light relative financial positions of the beneficiaries.

Our family disputes and contentious probate specialists have advised a number of clients on the Inheritance (Provision for Family and Dependants) Act in recent years, and we are increasingly seeing more enquiries on the Act.

If you would like to know more about the Act, please do not hesitate to contact us.

This reflects the law at the date of publication and is written as a general guide. It does not contain definitive legal advice, which should be sought as appropriate in relation to a particular matter.

Adrian Taylor

Adrian Taylor

Partner, Head of Disputes and Claims

Sign up

Enter your email address for legal updates on Private Client & Family Law.

Please see our privacy policy regarding use of your data.


Contact us

    The information you submit will be handled in accordance with our privacy policy.

    FREE: Legal Insights and Event News 

    Keep you, your family and / or business up to date on how the law affects you, by subscribing to one of our legal insights.

    Subscribe for free Legal Insights
    & Event updates

    Receive the latest legal developments and professional advice to keep your family and business safe.
    Please choose which list you would like to subscribe to below.





    Please see our privacy policy regarding use of your data.


    Latest News & Insights

    Top Legal Insights

     

    Contract Law

    Material Breach of Contract

    What is a ‘material’ breach of contract by a party to a commercial contract? This is a critical issue regularly considered by the courts. What constitutes a material breach and what are the remedies?

    Property Law

    Commercial Lease: The Financial impact on Landlord and Tenant

    Coronavirus (COVID-19) and the restrictions now in place to control its spread, are having a significant effect on many business sectors.

    Divorce and Family Law

    Divorce in Lockdown: Can I get some discreet legal advice?

    We have spoken to clients who are unfortunately experiencing some family issues, and would like to obtain expert legal advice, yet don’t know how...

    Land & Property Dispute

    Restrictive Covenants – The Price of Modification

    Having identified that your land is burdened by a restrictive covenant and for the purposes of this article the covenant in question will be that only one residential building can be erected on the land. What do you do next?

    Wills, Trusts and Probate

    Why is having a will so important?

    It is entirely up to you if and when you want to create a Will, but it is important to be aware of the consequences of not having a Will.

    Award winning legal advice

    We are solicitors in Camberley, Wokingham and London. In 2019, Herrington Carmichael won ‘Property Law Firm of the Year’ at the Thames Valley Business Magazines Property Awards, ‘Best Medium Sized Business’ at the Surrey Heath Business Awards and we were named IR Global’s ‘Member of the Year’. We are ranked as a Leading Firm 2020 by Legal 500 and Alistair McArthur is ranked in Chambers 2020.

    London

    60 St Martins Lane, Covent Garden, London WC2N 4JS 

    +44 (0) 203 755 0557

     

    Camberley

    Building 2  Watchmoor Park, Riverside Way, Camberley, Surrey  GU15 3YL

    +44 (0)1276 686 222

     

    Wokingham (Appointment only)

    4 The Courtyard, Denmark Street, Wokingham, Berkshire RG40 2AZ

    +44 (0)118 977 4045

    info@herrington-carmichael.com

    © 2020 Herrington Carmichael LLP. Registered in England and Wales company number OC322293.

    Herrington Carmichael LLP is authorised and regulated by the Solicitors Regulation Authority.

    Privacy   |   Legal Notices, T&Cs, Complaints Resolution   |   Cookies   |   Client Feedback