1 Feb 2012
Stuart Adams
Job Title
When people are grieving for the loss of a relative, friend or business partner, it is not the moment to face the contentious issues a beneficiary may encounter.
THE DEATH OF a relative, friend or business partner may give rise to a number of possible claims. Despite recent economic turmoil, there is greater wealth among a much larger proportion of the population than in earlier generations and, in general, people live longer than their ancestors.
There is also a heightened expectation by those who consider themselves “entitled” to inherit their parents’ and other relations’ wealth. A number of contentious issues arise that readers may experience and several ways exist in which they might be addressed. So, what are the most common issues and what could be done to prevent and minimise their effects?
In this instance, construction cases have nothing to do with building houses. They arise when a will has been poorly drafted or is ambiguous so that it is unclear who gets what, if anything. Sometimes, all concerned (the will’s beneficiaries) can agree how to interpret the ambiguous words, but failing that, the court’s assistance may be required to give its interpretation.
Court time is often quite expensive. A professionally drafted will is less likely to contain ambiguous wording in comparison to a DIY or home-made will. My colleagues and I have seen a rise in problems concerning wills prepared by unqualified and unregulated will writers and, last year, assisted the BBC’s Panorama programme with its feature on will writers.
In the UK, anyone can set up a business as a will writer and many people are attracted by the packages they sell, which include, for example, low-price wills, storage of wills and other documents, and flexible appointment times (including home visits). These are all services offered by solicitors who are academically and professionally qualified, and operate in one of the most regulated sectors.
Notwithstanding this, solicitors do not always get it right, and I have been instructed to bring professional negligence claims against members of my own profession. The saving grace is that solicitors, by virtue of their office, hold fully comprehensive professional indemnity insurance that provides compensation in instances of negligence.
A will may not have been signed using correct and strict procedure, or there may be concerns about the will maker’s state of mind when the will was made. In the latter case, a will maker may not have been able to understand the contents of his or her will. It is not uncommon, especially in the case of an elderly will maker, for someone to exert undue influence and to coerce them into making a will that benefits the person exerting influence.
In such situations it is possible for an individual to raise concerns with the court, which can order the deceased’s estate to be distributed under an earlier will, or decide that intestacy rules apply. Under intestacy rules the law, not the deceased, determines the distribution of the estate, which often gives rise to unexpected and undesirable results. The offending will is effectively ignored.
Claims under the Inheritance (Provision for Family and Dependants) Act 1975 are rising, although it is unlikely that you will have heard of it. Under the act, the will itself is not challenged. Instead, the claimant seeks “reasonable provision” from the estate in question when he or she feels that the deceased’s will (or the intestacy rules) does not provide for him or her as it reasonably should.
Only certain family members and financial dependants are permitted to bring a claim under the act. The court asks whether the distribution of the estate makes reasonable financial provision for the claimant and, if it does not, it will decide the provision that should be given, having regard to all the circumstances. Claims under the act must be bought within six months of the date of the grant of representation (referred to as “probate”). In exceptional circumstances, the court may allow an application after six months.
Claims under the act are often bought by an unmarried partner when his or her partner dies without having a valid will and, as such, the intestacy rules apply. If, for example, two people have been living together as husband and wife (albeit unmarried) with children, and neither has a will, then on either of their deaths the other will get nothing from the estate of the first to die, by virtue of the operation of the intestacy rules, no matter how many years they have been together.
The situation would be different if the couple were married or in a civil partnership. If the first unmarried partner to die was the “breadwinner”, then it is likely, all things being equal, that the survivor would have a strong claim under the act for a reasonable provision to be made from their partner’s estate.
When a will has been drafted in such a way that it fails to achieve the will maker’s wishes and intentions, perhaps as a result of an error in the drafting, or the person drafting the will failing to understand the will maker’s instructions, the court can amend or “rectify” the will. The claim to rectify a will must also be made within six months of the date of a grant of representation. It is often brought before, or in place of, a negligence action against the person who drafted the will.
“One day, all of this will be yours…” But alas, the will maker left his or her entire estate to the cats’ home. When one person has acted to his or her detriment by relying on the promise of another, and the other person has actively encouraged reliance on the promise, then the court may decide that it would be unfair to allow the promise to fail.
It is fairly common for such cases to involve a family business or a business in general, and there have been many cases in the press in recent years. One example is the case of Gill versus RSPCA, in which the deceased’s daughter, Christine Gill, successfully claimed entitlement to her late parents’ farm (which she had worked on for many years after giving up her job as a university professor) and which they left, by will, to the RSPCA.
If you realise that you may be able to bring a claim or challenge, the status quo is always the first step in the process.
The next step should be to seek specialised legal advice from a practitioner qualified and experienced in dealing with contentious claims. The hallmarks of quality in this field of work are membership of the Society of Trust and Estate Practitioners (STEP) and the Association of Contentious Trust and Probate Specialists (ACTAPS). A directory of members can be found at www.step.org and www.actaps.com respectively.
Members of these organisations advise clients on the broad business of managing personal finance and inheritance (both contentious and noncontentious) and are the most experienced and senior practitioners in the fields of trusts and estates. A legal advisor can help identify the type of claims that arise, and then consider the merits and the potential costs and timescales involved in resolving it.
Most claims do settle out of court and a contested court hearing is always the last resort. The types of claim discussed in this article are not exhaustive and other, less common types of claim may be made.
It is important to note that cases often turn on their own facts and do not follow a standard pattern. Accordingly, early intervention can help prevent protracted acrimony.
Disclaimer: this article is provided for general interest only and is a general summary. It may be incorrect in the circumstances that apply to you and does not cover all developments in the law. It must not be treated as legal advice and you must always take specific legal advice before taking or refraining from taking action.
