Disputed estates and claims

Under the Act certain categories of people can bring a claim against a deceased’s estate on the ground that the estate does not make ‘reasonable financial provision’ for them. Applications must normally be made within six months from the date that a Grant of Probate is taken out in the deceased’s estate.

In some circumstances a person dies and reasonable financial provision is not made for their family and dependants, either under the terms of their Will or under the  intestacy rules. If that happens, the Act allows a claim to be made against that person’s estate by certain categories of people.

If you fall into one of the six categories below then you may be able to make a claim:

• The spouse or civil partner of the deceased
• A former spouse or civil partner of the deceased who has not remarried
• A child of the deceased
• A person treated as a child of the deceased – as a result of the marriage or civil partnership of the deceased
• A person who immediately before the death of the deceased was being financially supported by the deceased
• A person who lived with the deceased for at least two years before the death

In considering any application, the Court will have regard to a number of different factors including your future financial needs and resources, the needs of any other applicants/beneficiaries and the size of the deceased’s estate.

Occasionally, a dispute will arise between personal representatives/trustees and beneficiaries that cannot be resolved. Equally, it is not uncommon for personal representatives to fall out amongst themselves and find that they are unable to work together to effectively administer the estate.  If all else fails it may be necessary to consider an application to the Court.

A Will can be challenged on a number of grounds, namely lack of testamentary capacity, lack of knowledge and approval, fraud or undue influence, subsequent revocation or lack of formalities of execution.

Section 9 of the Requirements of section 9 of the Wills Act 1837 provides that no Will shall be valid unless:

• It is in writing and signed by the testator (the person writing the Will), or by some other person in his presence and by his direction
• It appears that the testator intended by his signature to give effect to his Will
• The signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time
• Each witness either
  • attests and signs the will; or
  • acknowledges his signature, in the presence of the testator (but not necessarily in the presence of the other witness), but no form of attestation shall be necessary.

There is a wealth of case law concerning section 9 and a variety of grounds upon which the validity of a Will may be challenged, with each case turning on its particular facts.

For instance, in challenging the validity of the testator’s signature, it should be noted that anything that the testator intended to be a signature will suffice.  An inky thumb print, initials, a mark made by a rubber stamp with the testator’s initials on it, the words ‘your loving mother’ and part of the testator’s signature, providing that the testator had completed what he/she intended to write, have all been found to be acceptable.

Court cases concerning the formalities of execution of a Will most commonly concern section 9 (c) and whether the witnesses were jointly present when the testator signed or acknowledged.  It should be noted here that a signature is made in the ‘presence’ of witnesses if the witnesses are in such a position that they could see the testator in the act of signing.  It is not necessary that the witnesses should know that the document is a Will and they do not have to see the entire document.  However, the witness must of course be able to see the testator’s signature.

The rule against ‘double portions’ is a concept that has developed from case law and is intended to give effect to the presumed intention of parents.  It stems from the Court’s view that a parent has a duty to provide for his or her children and presumes that a parent would want to be even handed in doing so.

The rule applies where a parent makes provision for (or leaves a ‘portion’) to a child by Will and then makes a lifetime gift of a ‘portion’ to that child.  As a starting point, the Court presumes that the parent would not intend to provide twice to that child, to the disadvantage of any other children.  If the rule applies, the lifetime gift is regarded as a payment on account of the legacy.  The legacy will then be reduced to reflect that payment.

A lifetime of mortgage repayments and a rise over the years in property prices will mean that for many of us, the family home is the most valuable asset in our estate.

That leads to the difficult question of ‘who will inherit the house?’  In some cases a testator will make promises during their lifetime about who will stand to inherit the property on their death.  Whilst those promises may be made with the best intentions, they can cause significant problems to be addressed by the testator’s family later on.

Proprietary estoppel arises when:

• The testator represents to a person (or allows that person to believe) that they will leave their house to them in their will
• That person relies on the testator’s representation to their detriment
• The testator does not in fact make provision for the person to receive the house

A representation or promise made by a testator about how they will dispose of their property can give rise to an ‘estoppel’ preventing that testator from changing their mind and disposing of the asset in a different way.  The testator is effectively bound by the earlier promise.

In cases where proprietary estoppel is claimed, the Court will be asked to determine whether or not the claim should succeed and if so, how to best satisfy the equity due to the disappointed beneficiary.