Disputes on death: What are the options?
There are different requirements a claimant needs to fulfil depending on the nature of their relationship to the deceased.
If a dispute arises in relation to whether a family member or dependant has been properly provided for in a will (or under the intestacy rules), the impact on the parties involved can be extreme.
It is easy to see why disputes over inheritance are raw and can become bitter and intractable in a very short space of time. From a claimant’s perspective, the fact that they are not provided for under the will may come as a shock, or it could lead to wishing they had been more assertive when the deceased had talked about getting around to changing their will but had never quite found the time. There are also pitfalls under the intestacy rules which may not produce a result that seems fair. For example, a longstanding unmarried partner is not recognised at all under the rules. Similarly, an estranged spouse could benefit to the detriment of the deceased’s children.
In the case of an unmarried partner, or a child who still lived with their parent into adulthood, it may create anxieties such as when they might be made to leave their home and how they will afford to live. Conversely, the claimant may be someone who the deceased had fallen out with, who the beneficiaries to the estate felt caused the deceased a considerable amount of hurt and that the deceased would have been devastated to think that their wishes could be overturned to provide for claimant. In scenarios where individuals closely connected with the deceased feel the will or intestacy provides an unfair outcome they have an option to issue a claim under the Inheritance (provision for family and dependants) Act 1975 (the Inheritance Act).
Timing is critical
A claimant under the Inheritance Act needs to issue their claim at court within six months of the date of the grant of representation. It is therefore important for a claimant to take advice early. If a claim is issued outside of the six month period then the claim will be time barred and may only be permitted with the permission of the court.
Mediation could be an option
Solicitor led mediation is often a sensitive and effective method of resolving such disputes. The parties do not need to face each other across a court room. Separate discussions take place with their solicitor and the mediator relays information between the respective parties. There is the opportunity to talk through all options and take time to think about them, before making a proposal or counter proposal. Most claims are settled through negotiation but once proceedings are issued then the court will usually set a strict timetable to resolve the dispute, or a hearing will be required to determine what level of provision would be suitable.
How to avoid a dispute
Weightmans have extensive experience advising parties in relation to claims under the Inheritance Act and have successfully concluding matters in solicitor led mediation where it is appropriate. The ideal scenario, however, would be for such disputes to be avoided in the first place.
Top five tips to avoid an inheritance dispute
- However upsetting such conversations may be, talking openly about your intentions to everyone who would be affected will ensure there are no surprises in your estate planning.
- Consider making a gift during your lifetime. This can reduce the possibility of a dispute as you are still alive to explain the gift that will not form part of the estate on your death.
- Making a will rather than leaving matters to the intestacy rules could avoid a dispute. If there is anything that may be considered unconventional regarding your wishes (for example, you are not leaving monies to your children in equal shares) having a letter of wishes accompanying your will explaining your reasoning can greatly assist as well.
- Cohabiting couples can make a cohabitation agreement. This should not be done in preference to a will but to complement it. Care should be taken to ensure it exactly reflect the terms of the will when it comes to provision for your partner on death but it has the added benefit of regulating property ownership and living arrangements prior to death.
- If there are business interests involved, ensure shareholders’ agreements and other company documents are kept up to date and the terms replicate anything within a will.