Skip to main content
Advice

There are different requirements a claimant needs to fulfil depending on the nature of their relationship to the deceased.

It is impossible to overestimate the impact of bereavement. 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 therefore 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. 

Timing is critical

A claimant under the Inheritance (Provision for Family and Dependants) Act 1975 (“the 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 but to remember that, with all parties’ agreement, it is then possible to stay the proceedings (put them on hold) to allow negotiations to take place outside of the court. Another reason to take advice promptly is that the provisions of the Act do not enable just anyone to bring a claim against the deceased’s estate. There are different requirements a claimant needs to fulfil depending on the nature of their relationship to the deceased.  

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. Each party can be supported in those discussions by a friend or family member to help with how difficult just being there is. There is the opportunity to talk through all options and take time to think about them, before making a proposal or counter proposal. There is not enough time, however, to enable people to bury their heads and hide from decisions that must be made but are uncomfortable.

How to avoid a dispute

Weightmans have extensive experience advising parties in relation to claims under the Act and 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:

  • 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.
  • 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, ensuring shareholders’ agreement and other company documents are kept up to date and the terms replicate anything within a Will.

For guidance on disputing a will, contact our will dispute lawyers. For support in mediating a family law dispute, contact our family mediation lawyers.