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Law thoughts: choosing the beneficiaries of your will from the phone book

Luis Carlos de Noronha Cabral de Camara was a childless bachelor. At the time of his death, his estate comprised a 12-room apartment in central Lisbon, a house in the north of Portugal, a car and 25,000 euros. When he came to write his will, he didn’t have close family he wanted to leave anything to, so he asked a Portuguese notary for a copy of the Lisbon phone book and chose beneficiaries at random to avoid his fortune going to the state. Unsurprisingly, when the 70 random beneficiaries received letters from the lawyer, some were concerned that they were about to be the victim of a scam while others just thought it was a joke. But it was in fact all true and the beneficiaries received quite a few thousand euros each!

In England and Wales there is still a chance your estate may pass to the Crown if you die without a will or without close family surviving you. However, that doesn’t stop the public from enjoying complete testimony freedom when writing their wills.  As long as you are over 18 and have the necessary mental capacity to make a will, then it’s completely up to you who should inherit from you; you are not obliged to benefit anyone and if you have been tracking claims against estates in England and Wales, you will have note that charities are often beneficiaries of wills when there is a family dispute.

However, that doesn’t mean that no-one can bring a claim against an estate. Claims by disappointed partners, spouses and other family members are on the increase, particularly claims under the Inheritance (Provision for Family and Dependants) Act 1975 for “reasonable financial provision”.

What does reasonable financial provision mean?

Under the act, a claim may be brought by those who feel that reasonable financial provision has not been made for them in the will. Unfortunately, the act does not define ‘reasonable’, so the law on what might be reasonable has developed on a case by case basis.  The court has the option, if it is persuaded by the claimant’s case that no reasonable provision has been made, to either award a lump sum, a periodic payment or the ability to use an estate asset (like living in the house) for a period of time.

Who can make a claim?

A claim can be brought by the following individuals:

  • The spouse or civil partner of the deceased;
  • Any former spouse or civil partner of the deceased who hasn’t remarried;
  • Any child of the deceased;
  • Anyone whom the deceased treated as a child of the family;
  • Anyone financially maintained by the deceased immediately before their death.

Factors to consider

  • A claim must be brought within six months of the Grant of Probate;
  • Claims by a spouse or civil partner are unlimited but claims by anyone else are limited to the amount needed to maintain them. This may not mean maintenance to the standard you hoped;
  • “Reasonable financial provision” is subjective and it is for the judge to consider what is reasonable in all the circumstances;
  • If someone loses their claim, they could be forced to pay both their own  and their opponents legal costs;
  • The court will take the conduct of both the deceased and the claimant into account – so the conduct of a child toward a parent and a parent towards a child, for example, would be highly relevant.

For more information on any of the above including  wills, estate administration and contentious probate matters, feel free to contact the Private Client Department at Lyons Davidson on 0117 302 1420.

 

 

Posted on May 30th, 2019 by Lyons Davidson