Two broadcasts from Channel 5 have brought the world of contentious probate into the public eye, sparking debate and questions about this area of law.
Told in parts from behind the lens of poignant home videos, “The Inheritance” tells the story of three siblings whose father unexpectedly passes away.
The siblings are shocked and distressed to find that they have been cut out of the Will in favour of a mystery woman whom their father, in fact, married.
The issues that come to light are not uncommon; the viewer learns of a secret marriage, unusual transactions on bank statements, issues with medication and alcohol, coercion, a longstanding Will being changed and signs of dementia.
These issues, perhaps understandably, can be the foundation to challenge a Will.
In England and Wales, there is no duty or obligation to leave assets to children or anybody else; we have full “testamentary freedom” to leave our estate however we wish.
To the extent that they are embodied in a Will or Codicil, these wishes must be followed and are protected by law.
That being said, Wills can be challenged, primarily on two bases.
Contesting the validity of the Will
The most common grounds for these challenges are:
- Lack of “testamentary capacity” i.e. the person making the Will does not have the requisite capacity to do so
- Undue influence/coercion, i.e. the person is coerced into making a Will that they would not otherwise have made
- Lack of knowledge and approval of the contents of the Will
- Lack of due execution, i.e. the Will has not been executed in accordance with the requirement s9 of the Wills Act 1837
If the claim succeeds, the deceased person’s estate will pass either in accordance with the previous Will or in accordance with the rules of intestacy if there is no previous Will. The rules of intestacy will also apply if a marriage has taken place which has the effect of revoking any former Will – addressed further below.
Bringing a claim under the Inheritance (Provision for Family and Dependants) Act 1975
This Act was introduced to enable certain categories of people to bring financial claims for provision for the estate.
Those eligible to claim under the Inheritance Act are as follows:
- A spouse or civil partner of the deceased
- A former spouse or civil partner who has not remarried
- An unmarried partner of the deceased who lived with them as husband or wife for a period of two years before the date of death
- A child of the deceased, including illegitimate or legally adopted children
- A person who was treated by the deceased as a child of the family
- A person who was financially maintained by the deceased
If you fall within one or more of the categories above, the next step is to consider whether the Will or intestacy has made reasonable financial provision for you.
It is important to note a claim must be brought within six months of the date of the Grant of Probate or Grant of Letters of Administration.
If you are out of time, you may still be able to claim by making an application to the Court to bring proceedings out of time.
Factors to consider when assessing an Inheritance Act Claim
There are a number of factors a court must consider when assessing an Inheritance Act Claim.
- The financial resources and needs that you have or are likely to have in the foreseeable future.
- The financial resources and needs that any other applicant has or is likely to have in the foreseeable future.
- The financial resources and needs that any beneficiary named in the Will has or is likely to have in the foreseeable future.
- Any obligations and responsibilities the Deceased had towards any applicant or beneficiary named in the Will.
- The size and nature of the estate.
- Any physical or mental disability of any applicant or beneficiary.
- Any other matter, including the conduct of the applicant or any other person, which the Court may consider relevant.
If the claim succeeds, the Claimant will be awarded a sum or other provision from the estate (such as a life interest in the property) as the Court considers appropriate in all of the circumstances of the case.
In the case of a non-spouse or civil partner, this will be an award to reflect what is required for the Claimant’s “maintenance”, not necessarily what might be considered “fair”.
“Inheritance Wars” considers real-life contentious probate cases.
The most recent instalment addressed the disturbing case of Daphne Franks and her late mother, Joan Blass. The case concerned what has been commonly coined the “predatory marriage”.
As mentioned above, marriage revokes a Will, meaning that once parties have married, their estate Will pass pursuant to the rules of intestacy (unless a Will is made post-marriage).
In Daphne’s case, her mother, Joan, who suffered from dementia, had married a man 20 years her junior, unbeknown to the family.
As a result, when Joan passed away, her family received nothing from the estate; it all passed to the new husband.
Further Daphne was not able to recover any of her mother’s personal items or enter her property.
Significantly Daphne could not attend or arrange the funeral and is unable to lay a head stone at the site where her mother is buried, which remain unmarked.
As a child of the deceased, Daphne is within the category of people who can bring an Inheritance Act claim.
However, she would have been unable to bring a claim as she did not have a need for maintenance from the estate.
The case also confirms the longstanding legal position that the capacity to marry cannot be challenged post-death. Marriage can be challenged in a lifetime; however, even if overturned, the marriage still took place and, as such, still revokes any Will.
The only way to defeat this is for a Will to be made either in contemplation of marriage or after marriage. Daphne Franks continues to campaign for a change to the law.