Birmingham Law Society Column - March 2009
Sunday, 1st March 2009
By Julia Lowe, chairwoman of Birmingham Law Society’s Civil Litigation Committee
It may be because people are more litigious or perhaps the increasing value of estates has made fighting over the assets more worthwhile, but whatever the reason, the courts are dealing with a rising number of claims.
Claimants should remember that a person may leave what they want to whom they want. It is not for the courts or the state to dictate what should happen when you die. However, there are certain circumstances where the courts will intervene.
It may be that you are a disappointed beneficiary where limited provision or no provision is made for you under a will (or under the rules of intestacy where there is no will). Providing you fall within a certain category, most commonly spouses, civil partners or children of the deceased, you may have a right to bring a claim under the Inheritance (Provision for Family and Dependants) Act 1975. This Act gives those individuals who are financially dependent on the deceased the possibility of obtaining financial provision from the estate.
Alternatively you may wish to dispute the validity of a will because it has not been validly executed by the deceased. There are strict requirements on how wills need to be prepared and executed and with the large quantity of home made wills that are now produced, often individuals fail to comply with these essential requirements.
You may consider that at the time of entering into the will, the deceased lacked capacity and did not understand what they were doing. The will may not reflect the deceased's wishes. For example, an elderly relative may have been under pressure from family members or a malevolent carer when writing their will.
Another possible problem can occur when the wording does not reflect what the deceased intended. This is usually a case of an obvious clerical error or a failure on the part of the will draftsman to understand the instructions. In those circumstances it is possible to rectify a will.
It is not uncommon for disputes to arise in the administration of the estate. It may be that a beneficiary feels the executors are not dealing with the estate properly.
Alternatively the executors themselves may fall out. There are lots of possible actions that can be taken in these circumstances and it is always sensible to take advice.
