Trust, Estates & Will Disputes

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.

 

 


Will I incur costs if I bring a claim under the Inheritance (Provision for Family and Dependants) Act 1975?
10 February, 2017

Will I incur costs if I bring a claim under the Inheritance (Provision for Family and Dependants) Act 1975?

A claim under the 1975 Act is a contentious process and both you and the other party will incur legal and court fees (‘costs’).

Once judgment has been reached in respect of the actual claim, the court has discretion to decide who should pay the costs incurred by the parties involved. It will decide whether each side should bear their own costs, whether costs should come from the Estate or whether costs should be paid by one party to another.

The general rule in a Will dispute claim is that the unsuccessful party will be ordered to pay the costs of the successful party. However, the court can make a different order having considered all the factors of the case. For example the parties conduct both before and during the case, offers made by the parties and a refusal to engage in alternative dispute resolution, such as mediation.

Most Will disputes are resolved before trial and, as part of any settlement, the parties will reach an agreement as to costs. For more information about settling claims see our sister blog’s recent blog post Settling a Professional Negligence Claim (the principles remain the same).

If you do consider bringing a Will claim, before taking action, your legal adviser should discuss all aspects of costs with you and consider issues including risk and proportionality and the availability of litigation insurance.

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.

 


I think someone lacked capacity when they made their Will – what can I do?
6 January, 2017

I think someone lacked capacity when they made their Will – what can I do?

A testator (being a person who makes a Will) must have testamentary capacity at the time the Will was made in order for that Will to be valid.

 

 

This means that they must

  • understand the nature of making a Will and its effects;
  • understand the extent of the property which they are disposing;
  • are able to comprehend and appreciate the claims to which they ought to give effect; and
  • not be suffering from a disorder of the mind that perverts their sense of right or prevents the exercise of their natural faculties in disposing of their property by Will.

 

 

The level of understanding required by this test varies according to the complexity of the Will itself, the testator’s assets and any claims upon the testator.

If a testator did not have capacity at the time instructions to prepare the Will were given and when it was signed, it not be valid.

If the testator did have capacity at the time they gave instructions, but not when they sign the Will, the Will may still be valid if certain conditions are satisfied.

A Will made when the testator had capacity will remain valid if they subsequently lose capacity, provided they do not make changes to the Will after capacity has been lost.

If you are concerned about the validity of a Will you can challenging it. In the first instance, you can make enquiries of the solicitor who prepared the Will (see our blog post ‘Obtaining information about a disputed Will’) or consider entering a caveat to delay probate being granted (see our blog post http://www.cripps.co.uk/will-disputes/caveats-what-why-and-how/)

Further help

If you need advice on challenging or defending a disputed Will on grounds of capacity, 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.

 


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