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28th Jul, 2015
A daughter who was denied any inheritance in her mother’s will has been awarded £164,000 from the Estate
A question clients often ask their solicitor is: “Am I at liberty to dispose of my property and money as I wish when I die?” This question troubles many who consider that members of their family ought not to inherit or should receive a reduced amount on their death. There might be good and sound reasons for wishing to leave someone out of your Will or giving more to other deserving relatives or relative strangers through charities. Equally, there are those who consider that they should be entitled to inherit if left out of a Will. What is the Law and will attempting to exclude someone from your Will have the effect you wish?
Unlike many countries around the world which have a system of “forced heirship”, preventing people from disinheriting their nearest relatives, in England and Wales we largely remain at liberty to dispose of our own property and money as we wish. In other words we have “testamentary freedom” to do what we wish with our money and property on our death. It was said in a 1984 case that, subject to the discretion of a Judge and fiscal demands: “…an Englishman still remains at liberty at his death to dispose of his own property in whatever way he chooses…”
What are we therefore to make of the headline above, generated as a result of the most recent Court of Appeal decision published on the 27th July 2015?
The most significant impact into testamentary freedom is the Inheritance (Provision for Family and Dependants) Act 1975. Subject to a strictly applied time limit the Act allows certain people (e.g. relatives and others who were maintained by the deceased) to apply to a Court for “reasonable financial provision” from your Estate. For spouses and civil partners the financial entitlements may be substantial including very significant capital settlements. Other claimants could be entitled to maintenance which, as in the case reported above, might also prove substantial.
The headline above relates to a case under the Act where a mother, for her own strongly held reasons, sought to exclude her only daughter from her Estate. The mother’s Will left her money to a number of charities. After a long and prolonged series of court hearings the daughter succeeded in persuading a court that her financial circumstances were deserving of financial assistance from the Estate and that her needs were significant. She received roughly a third of the Estate. It has to be emphasised that not every claim under the Act will succeed or should be contemplated and expert legal advice ought to be obtained immediately a relative has died.
What can you do to prevent a claim against your Estate? This depends entirely on the individual facts of your case. Everyone ought to have an expertly drafted Will and one that contemplates potential claims under the Act.
What do you do if you think you have a claim? Speed is of the essence as time is a very important factor in cases brought under the Act.
As in the reported case above, even if your Will attempts to exclude someone inheriting even under an expertly drawn Will there remains a possibility that someone may make a claim and succeed. Taking expert advice will reduce considerably the chances that a claim will be made or succeed.
Note to Editors
Tony Pearce is a member of The Association of Contentious Trust and Probate Specialists (“ACTAPS”) and a specialist solicitor at GA Solicitors in Plymouth. He is available for interview on Plymouth 242134.
For expert advice on the preparation of a Will you may wish to speak with Jonathan Hall who is a member of the Society of Trust and Estate Practitioners (“STEP”). Jonathan can be contacted on Plymouth 513544.
GA Solicitors can trace its roots back more than 200 years and has been steadfastly helping the people and business in Plymouth and the South West for its duration. Originally based in Devonport, the firm gets its initials from Thomas Husband Gill who joined the practice in 1875 and later went into partnership with Albert E. Akaster.
Now one of the region’s leading law firms, the 70-strong team at the Lexcel-accredited LLP, conveniently accessible at their Plymouth city centre offices, is structured around seven practice areas, each comprising its own specialist department:
Wills, Trusts & Probate
30th Jun, 2015
Equity partner and previous Plymouth Law Society president, Robert Howard, is to retire from GA Solicitors today (30th June) after 33 years with the firm. Read more…