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Following the tragic suicide of Robin Williams, the comedian and actor who is perhaps best known for playing Mrs Doubtfire, lines were drawn and battle commenced between his widow, Susan Williams, and his three children from previous relationships. The argument revolved around who should receive various personal items belonging to the actor. In papers filed in December, Mrs Williams asked the court to exclude the contents of the home she shared with Robin from the other items his children were set to receive.

Court proceedings were issued and, after several months of warfare, the dispute settled out of court. The precise terms of the settlement reached have not been disclosed but it is understood that Mrs Williams will remain living in the home she shared with the actor and will receive maintenance sufficient to enable her to continue living there for the remainder of her life. She is also said to have received personal items including a watch, a bike they bought on their honeymoon and wedding gifts.

Contesting a will

Disputes over wills and claims against estates for financial provision are far from uncommon and, in fact, statistics show that such claims are steadily on the increase. It is worth pointing out that contentious probate disputes are certainly not confined to the rich and famous, and affect people from all walks of life. Second marriages, the reliance on an expectation of receiving an inheritance and more complex family relationships are only some of the reasons why applications for financial provision to be made from an estate are on the increase.

Under English law, a person can leave his or her estate to whomever he or she may choose. There is no system of forced heirship as in some countries like Scotland, where the law dictates that a fixed portion of a person’s estate must pass to close relatives, for example, to spouses, civil partners and children. Although this makes the situation clearer and ensures that close relatives receive some provision, it does limit testamentary freedom and takes away freedom of choice.

For better or worse, the starting point is that you have the right to determine who to leave your estate to when you die. You can do this by making your wishes known in a will, provided that, when making it, you have testamentary capacity, you know and approve the contents of the will, you are making your will free from coercion and your will has been executed correctly.

Inheritance Act

Sadly, however, it is not always the case that even if your will is valid, it automatically follows that its provisions are bulletproof and incapable of being varied. This uncertainty is created by the existence of the Inheritance (Provision for Family and Dependants) Act 1975, which allows the distribution of an estate to be challenged in circumstances where the effect of the will or intestacy creates a harsh or unreasonable result. A claim under the Inheritance Act requires a court to consider whether it is unreasonable for financial provision not to have been made, and if so, whether it should exercise its discretion and make an award out of estate.

Letter of Wishes

Although there is no way to prevent someone from bringing a claim against your estate in the future, there are things that you can do to ensure that your wishes are made clear, for example, leaving a detailed letter of wishes to explain why you are not making financial provision for someone who might otherwise expect to benefit from your estate, and making express reference to your wishes in your will. It may also be sensible to consider making a small amount of provision for a person who you do not want to include in your will to try and dissuade them from bringing a claim in the future. You should also strongly consider seeking legal advice to discuss the options available to you.

It is not sufficient for a potential claimant under the Inheritance Act to bring a claim on the basis that the provision or lack of is ‘unfair’. Fairness is not a factor the court will consider if a claim is brought. Instead, it will look at:

  • The financial resources or financial needs which the claimant is likely to have both now in the foreseeable future;
  • The financial resources or financial needs which any beneficiary under the estate is likely to have both now and in the foreseeable future;
  • Any obligations and responsibilities you had towards any claimant or other beneficiary of the estate;
  • The size and nature of your estate;
  • Any physical or mental disability of the claimant or any other beneficiary of the estate, and any other relevant matters the court should have regard to.

The Inheritance Act gives the court wide discretion to vary the distribution of an estate in circumstances where it believes that this is necessary.

In summary, English law promotes testamentary freedom. However, this alone will not guarantee that your estate will be distributed in accordance with your wishes. While beneficial and essential to some people who have been at the receiving end of a harsh unreasonable result, the Inheritance Act muddies the water somewhat and leaves the position unclear.

For more advice about how to prevent or even bring a claim under the Inheritance Act or on contentious probate matters, feel free to contact Kate Atkins on [email protected] or 01173 945087.