Legal

legal Claims against your estate

Daniel Flynn answers some of your questions

Is my will the last word?

It’s easy to put it off, but once you’ve made a will that’s the end of the matter, right? You can rest easy knowing that your assets will go to who you want after your gone, right? Not necessarily, advises Daniel Flynn, a partner at Garner & Hancock Solicitors. Daniel was involved in one of the leading cases in this area, Banfield v Campbell, which was reported in the law reports and the Times and Daily Mail in 2018. He takes you through some of the issues from that case so that you can make sure that your estate isn’t tied up in litigation after you pass.

What can possibly go wrong after I am gone?

As property prices continue to rise, the value of estates continues to rise with them and so claims against estates become more valuable and more worthwhile. We have seen a real increase in claims under the Inheritance (Provision for Family and Dependants) Act 1975 over the last few years. This piece of legislation gives certain people the right to ask the court to change the terms of your will after you die. Alternatively, if you die without leaving a will, a claimant can ask the court to change the terms of the intestacy. As well as leaving those you wanted to benefit with less, this can also lead to your estate being tied up for a year or more after your death in costly litigation.

Who can make claims after my death?

The Inheritance (Provision for Family and Dependants) Act 1975 is a piece of legislation made to ensure that people who might reasonably expect financial provision from your estate aren’t left penniless after you die. There are specific categories of people who are entitled to claim, namely spouses, children, people who were living for two years as a spouse with the deceased, and people who the deceased was treating as children such as step-children or foster children, and former spouses who haven’t re-married. There is then a catchall clause for anyone else who the deceased has been financially maintaining before they died.

In order to make a claim against an estate, it is not enough just to be in one of the classes of entitled people. The claimant also has to show that the estate does not make “reasonable financial provision” for them. This could mean that they have been left nothing, or else that they have not been left enough to meet their reasonable needs.

What can they claim?

The 1975 Act gives the court the power to order that the estate should make “reasonable financial

provision” for a claimant. What constitutes reasonable financial provision is going to be different in every case and has to take into account the size of the estate, the circumstances and needs of the claimant, the circumstances of any other beneficiaries of the estate, and the terms of the will or intestacy. This does not mean that the court has to decide what would be fair or make it up to someone who is disappointed not to receive anything. The 1975 Act is about meeting the claimant’s financial needs, not giving them a bonus or windfall.

If the court decides that the will or intestacy doesn’t make reasonable financial provision for the claimant then there is a broad range of what the court can do to vary the will. The court could order a lump sum to meet the claimant’s needs, or order a transfer of property or creation of a trust to provide income for a claimant.

How can I make sure my estate goes where I want it to?

There is no single answer to this question because every claim depends on all of the facts about your personal circumstances. The best thing to do to make sure that you have as much control as possible over your estate is to speak to a solicitor in detail. We can advise you about what potential claims there might be and how you can go