Trust, Estates & Will Disputes

We are in disagreement about chattels forming part of a deceased’s estate – what can I do?
14 April, 2017

What exactly are chattels? Essentially, they are personal possessions. From 1 October 2014 chattels are any ‘tangible movable property’ that is not:-

 

  • money or securities for money;
  • at the date of death used solely or mainly for business purposes; or
  • held at death solely as an investment.

The definition is slightly different if an individual died, or has a Will dated, before this date. In particular, all chattels used for business purposes are excluded (not just those used ‘solely or mainly’ for that purpose) but possessions held as an investment are not expressly covered.

If you die intestate, all of your personal chattels will pass to your surviving spouse or civil partner (if you have one).

If you have a Will you can specify, either in the Will itself or in an accompanying letter of wishes, if you want to leave any specific personal possessions to a specific person. The Will will normally specify that all other chattels form part of the your residuary estate and will pass to the relevant beneficiary(ies).

Making a Will can help avoid disputes about who should inherit possessions. Doing so removes any question regarding the definition of personal chattels and what would constitute a personal possession (one which provides personal use or enjoyment) or a business or investment possession. 

Additionally, if you have a Will but it is dated pre-1 October 2014, the old definition will apply. You should consider whether you need to update your Will to allow for the new definition.

If you want to prepare or review your Will, or think you may have a claim in respect of chattels, please contact Philip Youdan at philip.youdan@cripps.co.uk.  For further information about Will disputes and disputes involving trusts and estates please click here to view our Guide to Will Trust and Estate Disputes.. We can also discuss the possible options for funding your claim and may, in appropriate cases, be able to offer a “no win, no fee” arrangement or a fixed fee.

 

 

 


With probate fees increasing in May, what should I do if a caveat is preventing me from taking out the grant?
5 April, 2017

If you are the appointed personal representative of a deceased’s estate, you are likely to be aware of the widely reported decision by the government to dramatically increase probate fees for some estates in May.

By way of summary, the current flat rate of £215 or £155 will be increasing for estates worth £50,000 or more and, for estates worth

more than £2 million; these fees will be as high as £20,000.

In light of these changes, there is likely to be a rush of probate applications over the next 4 weeks to try to take advantage of the current, lower, fee. Concerns might arise for personal representatives, however, if there are any disputes concerning the validity of the deceased’s Will which have resulted in the entry of a caveat against the estate (as a caveat prevents the personal representative from obtaining the grant).

In our discussions with the Probate Registry, they have provided clarification on this point, confirming that as long as the application for probate is lodged before the fee increase in May, then the current fees should apply irrespective of whether a caveat has been lodged.

Accordingly, unless there are good reasons for not making an application, personal representatives and the beneficiaries of a deceased’s estate are likely to want to get their application to the registry as early in April as possible (even if a caveat has been entered) to avoid the estate unnecessarily incurring additional costs.

If you are involved in a probate or Will dispute and would like further advice on the increase in probate fees or more generally please contact Dino Sikkel at dino.sikkel@cripps.co.uk or call 01732 224 024.

 


How does the court value a claim under the Inheritance (Provision for Family and Dependants) Act 1975?
24 March, 2017

In a previous blog we provided an overview of claims under the 1975 Act, including who can bring a claim, ‘When can I make a claim under the Inheritance (Provision for Family and Dependants) Act 1975?’.

When deciding whether to make an award the court will consider whether, objectively, the distribution of the deceased’s estate (whether by Will or intestacy) failed to make reasonable financial provision for the claimant in the circumstances of the case.

What constitutes reasonable provision will depend on identity of the Claimant (see our previous blog post ‘Who can apply for an order under the Inheritance (Provision for Family and Dependants) Act 1975?’). Broadly, provision for a spouse or civil partner will be based on what is reasonable for them to receive and for any other applicant what is reasonable for their maintenance (a lower standard). 

 

In assessing reasonable financial provision, the Court will take into account prescribed factors set out in the 1975 Act. These main factors the Court will consider are:

  • The financial resources of the Claimant;
  • The financial needs of the Claimant;
  • The financial resources and needs of beneficiaries of the Estate;
  • The value of the estate; and
  • The nature of the relationship between the Claimant and the Deceased.

If the Court concludes that provision or further provision should be made to the Claimant, it can exercise its powers to make an award to the Claimant.

If you would like to discuss making a claim under the 1975 Act, please contact Philip Youdan at philip.youdan@cripps.co.uk or call 01732 224 013.  For further information about Will disputes and disputes involving trusts and estates please click here to view our Guide to Will Trust and Estate Disputes.. We can also discuss the possible options for funding your claim and may, in appropriate cases, be able to offer a “no win, no fee” arrangement or a fixed fee.


Daughter cut out of will loses legal fight
16 March, 2017

So there we have it.  After more than 10 years, the legal challenge has finally come to an end with the decision of the Supreme Court today.  Ilott v Mitson is done and dusted.

The headline above is taken as a direct quote from the post by the BBC on the front page of its website this morning.

Except it’s wrong.  Or not exactly right.  Or both.  What it, along with many other headlines today does do I fear is encourage people to jump to the wrong conclusion.  The Guardian by way of another example is leading with ” Court overturns daughter’s win over estranged mother’s will.”  Many others follow in a similar vein.

By implication the daughter has lost i.e. is now left with nothing.  She left her mum, her mum chose not to leave her anything under her will and that’s that.  But it’s not.

Whilst the Supreme Court overturned an element of the Court of Appeal’s earlier decision (by essentially agreeing with the original  decision), it concluded that the original judge was perfectly entitled to find that Mrs Jackson (the mum) was wrong to make no provision under her will for her daughter (Mrs Ilott).  Although it did also say that had he found against Mrs Ilott originally that might also have been the right decision.  However, let’s not overcomplicate things just yet…

In other words Mrs Ilott has ultimately won.  Just not as much as she was awarded by the Court of Appeal. It’s not exactly rocket science, but headlines being headlines could mean that people who have legitimate grounds to bring claims might now not do so.  If they don’t read beyond the attention grabbing first line that is.

We may experience the polar opposite of what happened following the decision of the Court of Appeal in 2015.  Back then many practitioners received calls from individuals who had believed news headlines that if they had been left out of the will of a parent they merely had to object and they would get something.  Whatever the facts.  The telephones were red hot for a while two years ago.  Most enquiries were hopelessly misconceived.

Now, the opposite might happen.  Individuals who have real need for financial support may be discouraged from even picking up the telephone.  They could be the real losers here and they are the ones we should be concerned about.

Myles McIntosh – Head of Private Client Division at Cripps LLP

If you have any questions in respect of this article please contact me on 01892 506136 or by email:  myles.mcintosh@cripps.co.uk .     

 


Spouse’s right to claim under the Inheritance Act does not survive for the benefit of their estate (High Court) by Practical Law Private Client
10 March, 2017

A surviving spouse’s right to make a claim for financial provisionfrom a deceased’s estate under the Inheritance (Provision for Family and Dependants) Act 1975 does not survive the spouse’s death, the High Court has held. (Roberts v Fresco [2017] EWHC 283 (Ch)).

The High Court has held that, where a surviving spouse had not made a claim for financial provision from a deceased’s estate before he himself also died, the surviving spouse’s right to make that claim under section 1 of the Inheritance (Provision for Family and Dependants) Act 1975 (IPFDA 1975) would not survive the spouse’s death. Although the IPFDA 1975 did not preclude such a claim being brought by a deceased claimant’s estate after they had died, had it been intended that the benefit of a claim could survive their death the statute would have provided for it expressly.

The IPFDA 1975 gave a personal right to bring a claim but that right was not a cause of action until the court had analysed the relevant facts presented by the claimant in the context of the criteria set out in section 3. Until that point, there was no enforceable right that could pass to the claimant’s personal representatives.

As with the Matrimonial Causes Act 1973, an assessment of the relevant criteria would be virtually impossible after the claimant’s death as many were based on the assumption that the claimant spouse was still alive at the date of the hearing.

Case: Roberts v Fresco [2017] EWHC 283 (Ch) (Bailii).

If you would like to discuss  the above please contact Philip Youdan at philip.youdan@cripps.co.uk or call 01732 224 013.  For further information about Will disputes and disputes involving trusts and estates please click here to view our Guide to Will Trust and Estate Disputes.. We can also discuss the possible options for funding your claim and may, in appropriate cases, be able to offer a “no win, no fee” arrangement or a fixed fee.

 

 


1 2 3 17