Trust, estates & will disputes

Claiming part of an estranged spouse’s inheritance
7 May, 2018

If a couple separate but do not divorce, their finances continue to be linked until either a divorce or separation agreement (which divides finances in a binding agreement) is finalised. Even finances built up after separation can be treated as joint assets.

While delaying a formal divorce may seem the easier path, it can lead to adverse financial consequence if divorce takes place at a later date or if one of the spouses dies before divorce. In this Blog,

we look at the latter scenario.

The first point to make is that if you are legally married to someone at the time of your death and have no Will (this is known as being intestate), your spouse will inherit a large portion (if not all) of your estate under the intestacy rules.

Even if you have made a Will, your spouse could seek to challenge this under the terms of the Inheritance (Provision for Family and Dependents) Act 1975. Under the 1975 Act your spouse, even if you have been separated from them for a long time, could seek to claim part of your Estate (see here for more details).

It is important to understand that whilst a former spouse who has not remarried can bring a claim under the 1975 Act, such claims are generally more restricted than claims by current spouses.

If you think you may have a claim against an estranged spouse’s estate, or you want to protect an inheritance you have received (or are expecting) contact Phil Youdan at philip.youdan@cripps.co.uk or on 01732 224 013 to discuss your options.


What happens if a Will is not properly witnessed?
23 April, 2018

To be valid, a Will must meet certain standard criteria which are set out in section 9 of the Wills Act 1837. If these criteria are not satisfied then the Will may fail resulting, in assets being distributed in accordance with an earlier Will (or, if no previous Will exists, under intestacy rules).

One of the essential criteria is that the Will is signed by the testator (the person making the Will) and this signature is made or acknowledged in the presence of two witnesses, who should then both sign the Will in the presence of the testator.

While you can make anyone a witness, it is often sensible to ask someone independent to witness your Will, as a Will cannot make a gift to either of the two witnesses (the Will is valid but gifts to witnesses will fail). This means that family members may not be the most appropriate witnesses.

If a Will is not properly witnessed it is likely to be invalid and fail. For this reason it is worth making sure your Will is prepared and executed properly, to ensure your wishes can be carried out. If you are concerned about a Will and wish to dispute whether it is a valid Will, on approach is to investigate whether it has been properly witnessed by taking statements from the witnesses named in the disputed Will.

If you think a Will which is being used to distribute someone’s estate is invalid, contact Phil Youdan  at philip.youdan@cripps.co.uk or on 01732 224 013 to discuss the options available to you.

 


Can an adoptive child make a claim under the Inheritance Act?
9 April, 2018

In England and Wales the law allows certain relatives, dependants and those treated as children by the deceased to apply to the court if they are left out, or insufficiently provided for, in the Will (or, if no Will exists, then on intestacy). This law is from the ‘Inheritance (Family and Dependants) Act 1975 (the Inheritance Act).

Children, those treated as children and those being maintained by the deceased can all bring a claim under the Inheritance Act.

From the date of adoption a child’s right to claim part of their birth parent’s estate is relinquished and the right to claim from their adoptive parents is granted. Children are treated as birth children from the date they are adopted and can therefore bring an Inheritance Act claim regarding an adoptive parent’s estate as of right as a child.

After adoption, an adopted child can only bring a claim against a birth parent’s estate if another basis of claim can be demonstrated. Commonly this will be that birth parent was continuing to provide for them, in which case they may claim as a dependent of the estate, or they were treated by the adoptive parent as their child.

If a child has not been legally adopted but is treated as the deceased’s child then the child may have a claim under the category of one ‘treated as the deceased’s child’.  

To discuss whether you may be able to claim under the Inheritance Act, please contact Phil Youdan at philip.youdan@cripps.co.uk or on 01732 224 013.


Can you claim an inheritance from your sibling?
19 March, 2018

Married couples and people with children will normally leave their money to their spouse or children after they die. If they are not

properly provided for, a spouse or child is entitled to bring a claim for a share or a large share of the estate under the Inheritance (Provision for Family and Dependants) Act 1975 (“the 1975 Act”) .

However, what is the position of other family members, in particular siblings? Whilst they are frequently left legacies, if they are not, can they contest a Will?

Siblings have the right to dispute a Will in the same way as any person who benefits under a previous Will or intestacy can.

If, however, the claim is not about challenging the validity of a Will but, instead, seeking to challenge the provision they receive, unlike spouses and children, sibling are not automatically entitled to pursue an inheritance claim under the 1975 Act.

Instead, in order to bring a claim under the 1975 Act they will need to establish eligibility by showing they were dependent on their sibling, typically by being financially supported by them while they were alive.

If you can establish an entitlement to bring a claim, a Court will have to decide what if any provision to make. In doing this, the Court would take all relevant factors into account, including the sibling’s present and future financial needs and resources.

The time limit for making a claim under the 1975 Act is 6 months after the grant of probate is taken out. Therefore, if you believe you may have a claim it is important to seek legal advice sooner rather than later.

If you would like to discuss whether you are an eligible claimant under the 1975 Act, please contact Phil Youdan at philip.youdan@cripps.co.uk. 


Can you still claim benefits if you inherit money?
16 February, 2018

A common issue we are asked to advise on is the relevance of means tested benefits to a will dispute or an inheritance claim. People in receipt of such support are in vulnerable circumstances and are understandably concerned that:

  • Their position might prevent them from disputing a Will; or
  • Their financial position might be altered to their detriment by receipt of an inheritance.

Being in receipt of benefits is not a bar to disputing a Will. Indeed, a common Will claim that we pursue on behalf of clients is under the Inheritance (Provision for Family and Dependants) Act 1975. This type of claim is based on an assessment of the claimant’s financial resources and needs and the fact that you receive means tested benefits can support such arguments.

Whilst your financial circumstances may prevent you from affording to pay for legal advice, where your claim has merit, we will often be willing to act for you under “no win, no fee” agreements.

But what if you succeed – will the impact of any inheritance received leave you worse off? The most common means tested benefits in England and Wales are:

  • Jobseeker’s Allowance;
  • Employment and Support Allowance;
  • Housing Benefit;
  • Universal Credit; and
  • Council Tax Support.

For these, an increase in your income and/ or capital could affect your eligibility to continuing claiming benefits and it could potentially stop all your benefit payments. If you are claiming benefits, you have a duty to report increases to your financial circumstances. Therefore, if you do not report your inheritance, you may have to repay some of the benefit money that you received and you could also face prosecution.

However, in most cases we deal with, the benefit of an inheritance will far exceed the lost income. In other cases, it is possible to maintain your entitlement to means tested benefits by the use of trusts.

Summary

If you are concerned that your eligibility to claim benefits may be affected by an inheritance, or you want advice about options that can reduce the impact that your inheritance will have on your income and/or capital through the creation of trusts or by varying a Will, please contact Phil Youdan at philip.youdan@cripps.co.uk


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