Millions says they would challenge an inheritance – but what are the options if you have concerns?
Posted on 22 January 2020 by Charlotte Dullaway
At the beginning of last year the Independent reported that more than 12.6 million Britons would challenge an inheritance if they were unhappy with the result. This staggering number, identified by a poll conducted by Direct Line Life Insurance, suggests that people are becoming increasingly aware of the options available to them if they are either dissatisfied with their inheritance or have concerns about a Will.
So what are the options if you have concerns about a loved one’s Will or the provision made for you? Well, that depends upon why you are concerned. In the broadest of terms, concerns arising from estates generally fall into one of the following categories:
- Concern about the provision you receive (or do not receive);
- Concern about the Will itself;
- Concern about your interests.
Concern about the provision you receive
Unexpected or unpleasant surprises in Wills can lead to feelings of resentment and discord within families. However, it may be possible for you to take action rather than just accepting your loved one’s wishes. Even a testator (the legal term for the person whose Will it is) with the best of intentions can inadvertently fail to make reasonable provision for their family and dependants within their Will. There are a number of reasons why this may have happened such as a misunderstanding about someone’s financial position or due to circumstances changing between the Will being written and the testator passing away. Whatever the reason, if you do not feel that the provision made for you is sufficient you may be able to take action.
The Inheritance (Provision for Family and Dependants) Act 1975 enables certain categories of people to make claims against estates. Not everyone can bring a claim under this act. The people who can make use of the act are:
- The spouse or civil partner of the deceased;
- A former spouse or former civil partner of the deceased, as long as they have not remarried or entered into a new civil partnership;
- Children of the deceased;
- Any person raised as a child of the family of the deceased;
- Any person being maintained by the deceased immediately prior to their death;
- Any person living with the deceased as though they were married or in a civil partnership for two years prior to the death.
If you fall into one of the above categories and feel that the provision made for you is unreasonable you could consider bringing a claim. Potential claimants should be aware that (with the exception of claims by spouses/civil partners) claims can be made on the basis that the provision made is not reasonable in the circumstances and are likely to be based upon your maintenance needs rather than to make the distribution of the estate fair.
Those considering a claim under the Inheritance Act should act quickly as there are strict time limits in place.
Concern about the Will itself
Sometimes the content of the Will or the circumstances which led to its creation can raise suspicion about the validity of the Will itself. There are a number of requirements which must be fulfilled and if any of these are in doubt you may choose to investigate the validity of the Will. The most common types of validity challenge we see are based upon:
- The mental capacity of the testator;
- Pressure being placed on the testator to make the Will in specific terms;
- Formalities not being complied with.
If you have concerns about the validity of a Will you may consider entering a Caveat at the Probate Registry to prevent a Grant of Probate being issued whilst you investigate the circumstances leading to the creation of the Will. Investigations will need to be conducted to find evidence to support a challenge to the validity of the Will. Steps you may be advised to take could include obtaining the file of the solicitor who prepared the Will and/or the deceased’s medical records. However, as each case is fact specific it is important to take advice on what evidence you will need to search for.
Concerns about your interests
Property ownership is not always straightforward and sometimes the legal owner recorded on the Deeds is not the only person with an interest in the property. For example, there can only be four legal owners of land and if it is purchased, or inherited, jointly by five or more people, the first four will be listed as the legal owner on the Deeds but will hold it on trust for themselves and the remaining owners. Alternatively, if a couple both provide funds for the purchase of a property but it is registered in only one of their names, the other partner is likely to have an interest in the property.
Where the legal owners and the beneficial owners (those with a beneficial interest in the property) are not the same it can cause complications when the legal owner dies. For example, if Tom and Beryl purchased a house using Tom’s savings and Beryl’s inheritance, but had registered it in Tom’s sole name, Beryl could be left in a difficult position if Tom left the property to someone else in his Will. If this were to happen, Beryl may wish to bring a claim to establish her interest in the property to prevent it passing to the beneficiaries under Tom’s Will.
Another increasingly common scenario is where someone promises that you will receive their land or property and you act upon their assurances in a way that is detrimental to you, only to later learn that they have left it to someone else or are no longer intending to stand by their promise. These types of claims are known as Proprietary Estoppel claims when they relate to land and are particular common in farming communities. If you have acted to your own detriment as a result of your reliance upon a promise that you would receive land or property and discover that you will no longer be receiving that land or property, you may wish to investigate whether you could bring a claim to establish that it would be unconscionable or unfair for the person making the promise to be allowed to go back on their word.
If you have concerns about a Will or inheritance and are considering taking action please get in touch on 01823 446230 or via email to firstname.lastname@example.org to discuss your unique situation and find out how we can help.