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