24/07/2019

Dealing with grief after the loss of a loved one can be an incredibly difficult and deeply personal experience. But dealing with that grief in the face of a family dispute is not only stressful but can create irreparable family rifts.

Family disputes when someone dies are not uncommon and sadly many such conflicts revolve around belongings, money and burial rights.

The number of challenges being made to people’s estates is increasing possibly due to more complex family arrangements, plus the rise in DIY wills and people failing to make a will or keep their will up-to-date.

If you are experiencing a family dispute due to disagreement over inheritance, there are a number of situations when it is possible to make a legitimate claim.

The first is under the Inheritance (Provision for Family and Dependents) Act 1975. This Act provides a mechanism for a claim to be brought where a ‘reasonable financial provision’ has not been made for someone by the deceased where there is a moral obligation to provide for that person’s maintenance.

Commonly, such claims are made in circumstances where:

• They have not been provided for in the will,
• There is no will and they have not inherited under the intestacy rules, or
• The inheritance received is not enough to meet their needs.

This situation is particularly relevant to couples who live together but don’t have a will, as a cohabitee is not legally entitled to anything if their partner dies without a will regardless of how long they have been together.

Claims can be made by:

• A cohabiting partner who the deceased has lived with for at least two years
• The deceased’s spouse or civil partner
• A former spouse or civil partner who has not remarried
• A child, or anyone treated as a child, of the deceased
• Anyone who immediately before the death was being maintained by the deceased

A claim under the Inheritance Act is not a claim to set aside a will, but an application to the court for a legacy to be created in the will.

Secondly, you can challenge a will if you believe it is invalid. To be valid a will must be:

• Made by a person 18 or over
• Made by a person who is of sound mind
• Made without pressure from any other person
• In writing and signed by the person making the will and witnessed by two witnesses, in the presence of each other

It is worth noting that there has to be sufficient monies in the estate to merit a claim being brought otherwise the involvement of the estate in a claim can use up the pot of money available leading to a Pyrrhic victory – a victory that is tantamount to defeat as any benefit sought is negated.

If you think you have a legitimate claim against an estate, you should make your challenge as soon as possible, ideally before probate is granted. If probate has been granted, it is important that you seek legal advice as soon as possible as there are strict time limits in regard to bringing a claim, particularly under the Inheritance Act 1975.

You will need to seek legal advice from a specialist disputes solicitor who will, in the appropriate circumstances, file a ‘caveat’ at the Probate Registry to prevent probate from being granted and allow you time to make the investigations required.

Cases can take some time, but it is possible to find a compromise and minimise costs by using mediation between the parties.

For advice about a family dispute relating to inheritance phone 01782 205000 or email enquiry@beswicks.com.