One of the big changes in society over the last 50 years has been that we are all living longer and in more complex circumstances. Second marriages are far from unusual and, as a result, family dynamics are more fluid and less traditional, with children, stepchildren and siblings, and half- and step-siblings all having to work together to solve the large and small decisions involved in family life. Sometimes, the complexity of blended families and disagreement over those decisions can lead to inheritance disputes.
Inevitably, that can cause difficulties and there is no coincidence that this rise in longevity and complexity has been mirrored by a rise in contentious probate claims: essentially, rows about what you have – or haven’t – inherited.
These can range from claims that a deceased parent or step-parent did not have the necessary mental capacity to make their will, to claims that the will is invalid because the person writing it was the subject of undue influence. Increasingly, there are also claims that the will is a forgery or that the person who signed it did not know or approve the contents.
Often, the basis of the claim can be a feeling that the way the estate has been left is ‘unfair’. Obviously, that’s a very difficult concept to agree. Not everyone sees ‘fairness’ in the same way. Should all children be treated equally? What if one of them is much more successful than the others? Or much less? If children are estranged from their parents, should they expect to receive anything when that parent dies? Does the reason for that estrangement matter?
Inheritance Act and inheritance disputes
While the court is not obliged to work out what ‘fairness’ is, it may well be invited to consider what would be ‘reasonable financial provision’ for a claimant under the Inheritance (Provision for Family and Dependants) Act 1975, which involves balancing the different claims there may be for financial provision out of someone’s estate.
However, what the court invariably does have to consider is the costs of these claims and they can be considerable. In the recent case of Brennan v Prior, a daughter brought a claim against her late father’s estate, claiming that his last will was invalid on a number of grounds. She lost the case and the judge ordered her to pay everyone else’s costs. Unfortunately, these amounted to much more than the £100,000 legacy that she had been left.
This is by no means an isolated case – the cost of litigation is enormous and if the disputed estate is modest in size, it can easily be swallowed entirely by the legal system. It is also not uncommon for all the costs to be awarded out of the estate itself – meaning that everyone who inherits is going to pay a share – in some cases, whether they were involved in the dispute or not.
The family dynamics coupled with the very high costs in this area of law make contentious probate a very serious undertaking and one which you should not enter into without first receiving expert and specialist advice. If you would like to know more about inheritance disputes and bringing a claim against an estate, please call Tamara Hasson, the partner who heads the Contentious Probate Team in our Private Client department, on 0117 394 5030 or email at: [email protected]