In English law a person isn’t forced to make automatic provision for spouses and children at the point of making a Will – they choose who to include or exclude, advises Stephanie Kerr, Associate Solicitor with Napthens

If no Will is made, the law sets out which relatives inherit a person’s estate (Intestacy Rules). The provisions of a Will or the Intestacy Rules can result in dispute between beneficiaries. There are many reasons why a Will which seemed perfectly sensible at the time, might be affected by changing factors (or the Intestacy Rules) which create problems for beneficiaries.

An adult child may have given up their career to care for a parent, putting them at a disadvantage on the labour market, a spouse may receive the right to live in a property which might not suit their future physical needs, a child provided with maintenance following their parents’ divorce may need financial assistance with education not met by their deceased parent’s estate.

These are simple examples of reasons why the Court can be asked to consider whether the Will or Intestacy Rules result in reasonable financial provision for certain categories of person and make an Order to vary the way the estate is distributed.

Children of the family, or those treated as children of the family can make a claim. A stepchild or a child living with the deceased but not related, such as a cohabitee’s child, can bring a claim. Adult children are included as well as minors.

A person maintained by the deceased can bring a claim. The type of maintenance can be for example, regular income, contribution towards rent/mortgage, payments towards education or accommodation provision.

Cohabitees can bring a claim if they lived with the deceased for more than two years, but they need to show they have lived like a married couple for that period, for example more than simply housemates.

The Court will also consider whether a spouse or civil partner has been reasonably provided for. This can include divorced couples in some circumstances, as well as those couples who remained married at the time of death.

Given the range of possible claimants, there is often animosity between parties as a result of competing claims. An application to Court does not necessarily mean the Will will be re-written. The Court carries out a balancing exercise on a case-by-case basis, considering many factors, for example whether the deceased was in fact supporting the claimant, whether future maintenance is required, whether there was any obligation for support to continue etc.

Napthens team of specialists can advise you on the complex issues surrounding inheritance disputes. Please contact us for further information.

Stephanie Kerr is an Associate Solicitor specialising in inheritance and probate disputes at regional law firm Napthens




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