Tuesday 24 January 2012

When a parent dies it can be a devastating experience for an adult child.  If they then find themselves disinherited or having to deal with a claim being brought against the estate by another family member, feelings of loss can be compounded by anger, confusion and distress.

Inheriting from parents can be an issue that is tied up with our sense of how much we were loved and valued.  It is especially hard for adult children if they feel that their parent’s death has caused a situation that their parent did not actually foresee – or would not have wanted to happen.

Often disputes arise because a parent has failed to make a Will (this is called intestacy). Sometimes a Will has been made, but perhaps a long time ago, or at a time when the deceased felt under pressure or was unwell.

Generally speaking inheritance disputes involving adult children follow one or more of three possible legal routes:-

1. Inheritance Act 1975.
2. Contentious probate.
3. Proprietary estoppel.

The Inheritance (Provision for Family and Dependants) Act 1975

The Inheritance Act provides that adult children (as well as other close relatives) can apply for provision from the estate of a parent whether a Will has been made or not.

The Court must have regard to what are called the section 3 factors: –

a. The financial resources and needs of the applicant.
b. The financial resources and needs of any other applicant.
c. The financial resources and needs of the beneficiaries.
d. Any obligations and responsibilities of the deceased towards any applicant and any beneficiary.
e. The size and nature of the estate of the deceased.
f. Any physical or mental disability of any applicant or beneficiary.
g. Any other matter, including conduct, which the court may consider relevant.

It is not always easy to predict whether a claim will be successful or not as every case depends on the facts of the case.   Cases decided by judges over the years give solicitors an indication of what factors influence them in reaching their decisions. Judges are likely to find in favour of adult children in Inheritance Act cases where:
• the estate is reasonably large,
• there is no other applicant who has any particular financial needs and
• the applicant is in low paid employment and will have financial needs in the future.

Applicants may still gain the Court’s sympathy even where there has been an estrangement with the deceased parent and/or when their lifestyle choices have put them in a position of financial need.

The case of Ilott v Mitson is a recent striking example.  In this case Heather Ilot, who had 5 children and was living on benefits, successfully challenged her late mother’s Will and was awarded £50,000 (which represented 10% of the value of the estate).  Heather’s mother Melita Jackson made a Will leaving nearly all her estate to a group of charities.  She left a Letter of Wishes with her Will to her executors foreseeing the possibility that it might be challenged by Heather.  In the letter she said “My daughter left me on Sunday 19th February 1978 when she was only 17 years of age … I have only seen my daughter twice since she left home … because my daughter left me without any explanation and has made no effort to reconcile with me I feel as though I have no moral or financial obligation to provide for her.”

The deceased’s wishes were therefore extremely clear.   Some commentators vehemently disagree with this judgment and are concerned that the principle that you can leave your estate to whomever you like has been severely undermined by the decision. Others take the view that the law simply provides a mechanism to balance an applicant’s needs against those of any other beneficiaries, and that it is not for the Court to make moral judgments.

That said, if the applicant has failed to make any effort to achieve reconciliation, this is certainly a factor that the court can take into account and indeed this was a decisive factor in the case of Garland v Morris in 2007 where there was a complete estrangement for the last 15 years of the life of the deceased; the adult daughter failed in her claim under the Act.

Contentious Probate

A Will can be challenged if it can be proved that the Will is not valid. Often this situation arises when the person who made the Will (the testator) did not actually know what they were doing i.e. they lacked mental capacity. Another argument is that the testator was forced to make their Will (undue influence).  Very rarely it may be argued that a Will is in fact a forgery.

Contentious probate cases are relatively unusual because the legal costs involved in pursuing them can be very high, usually in excess of £20,000.00 per party. Also they can be very difficult cases to argue because the court requires, understandably, very strong evidence before overturning a Will because it is the last known expression of the deceased’s wishes.

The court must be satisfied on the balance of probabilities (ie more than 50%) that the Will was not valid. It can be very difficult to obtain evidence as often the testator was elderly or isolated.

Proprietary Estoppel

This is a legal principle that, in essence, if someone makes a promise to you and you rely on that promise to your detriment, then if the person making the promise does not keep their side of the bargain you may be able to bring a claim against them (or their estate if they have died).

An interesting case which combined all three of the arguments above is that of Gill v RSPCA.

Dr Gill was the only child of the family and had expected to inherit her parents’ combined estates valued at more than £2 million and consisting mainly of 287 acre farm near Northallerton, North Yorkshire.

Dr Gill’s father died and then subsequently her mother.  She discovered that her parents’ Wills each contained a clause declaring that no provision had been made for her because she had been “well provided for … over a long period of time”.

Dr Gill initially brought a claim under the Inheritance Act 1975 but by the time the claim came to trial she claimed that her mother’s Will should be set aside either because she did not know or approve of its contents (which left everything to charity) and/or in executing the Will her mother had been the victim of her husband’s undue influence.  Dr Gill also claimed that she should inherit because of proprietary estoppel.

At trial the Judge accepted that Mrs Gill was coerced into executing a Will by her husband and as a result of that finding, the Will was set aside which left the whole estate to Dr Gill under the rules of intestacy.  The Judge went on to say that even if he had not found in favour of Dr Gill on that ground she would have been entitled to receive the farm on the basis of her proprietary estoppel claim.  She had argued that she had been led to believe by both her parents that she would inherit the farm on their death. She and her husband had worked unpaid on the farm over many years and she did not pursue promotion in her work as a university lecturer on the basis of that promise.

Summary

Adult children who are involved in inheritance disputes have a number of options which need to be carefully explored at the outset.  The cases that come to court are a reminder that anyone making a Will needs to get good legal advice if they want to prevent disputes post death.  Jill Waddington and Sue Cash at Ridley & Hall are members of Solicitors for the Elderly and their expertise means that they can give advice that can help to avoid post death disputes.

If, as an adult child you are seeking to bring or defend an inheritance dispute Sarah Young, Partner at Ridley & Hall is a member of both Solicitors for the Elderly and The Association of Contentious Trust and Probate Specialists (ACTAPS) and can offer sensitive, practical advice on the often complex issues that can arise.

If you have any questions or have concerns about disputed Wills, Ridley & Hall Solicitors have a dedicated team of experts who specialise exclusively in this area of law.  Please feel free to contact us on 01484 538421 or e-mail sarah.young@ridleyandhall.co.uk