A claim made pursuant to the Inheritance (Provision for Family and Dependants) Act 1975 (“IPFDA”) is a claim made no more than six months after the Grant of Probate for the Estate in question has been issued. It is a claim for “reasonable financial provision” where the potential claimant has not been properly provided for, if at all, in the deceased’s Will. A potential claimant does not need to be missed out of the Will entirely to make a claim, a claim can be made if the potential claimant believes that their share is not enough to meet their reasonable financial needs. A claim made pursuant to the IPFDA cannot include a claim for specific items as it is a claim based on the “need” of the claimant.

Eligible Claimants include:

• The spouse/ civil partner of the deceased. There is a presumption that partners rely and provide for one another so it is not necessary to prove impecuniosity (the state of lacking finances or material possessions);
• The ex-spouse of the Deceased could bring a claim, however whether financial matters were concluded between the ex-spouse and the Deceased at the time of death would be considered;
• A cohabitee of the Deceased, however the cohabitee and Deceased would have to have been cohabiting for at least 2 years prior to the death of the Deceased;
• A biological child of the Deceased;
• Someone who was “treated as a child” of the Deceased; and
• Someone who was “maintained” by the Deceased.

Once a claim has been made, the Court would need to consider:

• The present and future finances of all claimants and beneficiaries;
• The obligations and responsibilities that the Deceased had to any potential claimant or beneficiary;
• The size and nature of the Estate;
• Any disabilities of any claimant or beneficiary; and
• Other matters, such as the conduct of any party to the dispute. Poor conduct can result in an award for costs to the other party.

The above list is not an exhaustive list of all considerations as every claim is at least slightly different, but the above list details the initial considerations that any Court would reasonably consider.

A claim made by a spouse

The Claimant and the Deceased must have been legally married at the time of death. The Court would consider what “reasonable provision” ought to be provided to the spouse. The age of the parties, length of the marriage, and the contribution to the “family life” would be considered. The Court may consider what would have been received by the spouse in the event of a hypothetical divorce.

The paramount consideration by the Court would be what is fair, right and reasonable in this case?

A claim made by an ex-spouse

A claim could be made by an ex-spouse if there is a “decree nisi” in place. This is where the parties are separated but not legally divorced. It would be unlikely to succeed in a claim where financial matters have already been settled as it would be presumed that the ex-spouse has already received what they are entitled to.

A claim made by a cohabitee

There is an onerous burden to evidence if a claim is made by a cohabitee. The claimant must have been living as “man and wife” with the deceased at the time of death and for the two continuous years prior to death. This means that someone who just shared a property with the deceased would not succeed in making a claim. The court may still want to see what contribution the claimant has made to the “family”.

A claim made by a biological child

There is a presumption that children will become independent of their parents after they come of age. There is no forced heirship in the UK, meaning you do not have to make provision for your children in your Will. What was expected for the child would be taken into account, such as education fees if the child is still in or is about to be in education.

It is important to note that a child of the deceased cannot claim on their estate if they have been legally adopted by someone else.

A claim made by someone who was “treated as a child of the deceased”

The Court would consider the length of time the claimant was maintained for by the deceased and what the reasonable future expectation of this would be. Important factors the Court would consider here would be whether the deceased knew the child wasn’t their biological child or if there was anyone else who also assumed maintenance for the claimant.

Claims made pursuant to the IPFDA 1975 can be quite complex and are a highly emotive field of law and so require specialist assistance.

For further advice and assistance please contact our Litigation and Dispute Resolution team on  01604 828282 / 01908 660966 or email info@franklins-sols.co.uk.

In the realm of estate planning and inheritance, intestacy laws play a crucial role in determining how a deceased person’s assets are distributed when they pass away without a valid Will. These laws are in place to provide a framework for inheritance when the deceased did not express their wishes through a Will. In this context, the concept of a “statutory legacy” has gained prominence, representing a fixed amount or portion of the estate that is guaranteed to be passed on to certain beneficiaries, usually the surviving spouse or civil partner. Recently, there have been discussions and changes to the intestacy statutory legacy, aiming to ensure a fair distribution of estates.

Defining the Intestacy Statutory Legacy

The intestacy statutory legacy is the minimum amount or share of the deceased’s estate that is protected by law to be given to certain individuals, even if there is no Will in place. This amount is reserved for the spouse or civil partner of the deceased, recognising their rights and needs in the absence of explicit testamentary instructions.

The Need for Change

Over time, societal norms, family structures, and economic conditions evolve, necessitating updates to these laws to reflect the changing landscape. One common issue that has arisen is the sufficiency of the statutory legacy, particularly in scenarios where the value of the estate is high or when the surviving spouse or civil partner faces financial challenges. In response, lawmakers have revisited these laws to ensure they adequately address modern concerns.

Recent Reform

Following a recent review, the statutory legacy has increased to £322,000 for deaths which occurred on or after 26^th July 2023. For deaths prior to this date, but between 6^th February 2020 to 25^th July 2023, the statutory legacy remains at £270,000.

In essence, this means that should you pass away without a Will in place from 26^th July 2023 onwards, the first £322,000 (the statutory legacy), together with all personal possessions, will pass to the surviving spouse or civil partner and then the remainder of the estate will pass as to 50% for the surviving spouse or civil partner and the remaining 50% will be divided between any children equally.

It is important to note that if there are no children, then the entire estate will pass to the surviving spouse or civil partner, which remains unchanged.

Is a Will still needed?

Despite this recent change, it is still important to have a Will in place as the intestacy rules still do not take into account more complex situations. For example, the intestacy rules do not provide for cohabiting couples so, for illustrative purposes, if you own a property as tenants in common with your partner, and you pass away without a Will in place, your share of this property will not pass to the survivor of you but instead via the intestacy rules which may mean that the survivor has to sell the property to release the equity, leaving them in a vulnerable position.

A Will also does a lot more than allow you to decide who is to benefit from your estate. It will allow you to appoint guardians of any minor children, leave specific gifts to certain individuals or charities and allows you to appoint individuals or organisations you trust to administer your estate effectively.

For further advice and assistance please contact our Wills, Trusts and Probate team on 01604 828282 / 01908 660966 or email info@franklins-sols.co.uk

It is possible to stop the distribution of inheritance to beneficiaries should you wish to make a claim against the deceased’s estate.

In order to do so however, you must act promptly.

The first step is to create a document called a Caveat. A Caveat sets out the details of the person who has passed away and the date of their death. This helps the Probate Registry identify the relevant estate. The form has a prescribed form and when sent to the Probate Registry it must be accompanied by the appropriate fee. 

If a Caveat is lodged with the Probate Registry before the application for a Grant of Probate or Letters of Administration has been filed, it prevents the issue of the Grant or Letters of Administration. The Personal Representatives will not be able to collect the assets of the estate together or sell any of the deceased’s properties until the Caveat has been removed.

A Caveat is only in place for a 6 month period although it is possible to renew it.  During the 6 month period, this time should be used to investigate and present any claim.

The Caveat can be removed by a Personal Representative.  In order to make this challenge, the Personal Representative lodges what is called a Warning at the Probate Registry.  No fee is required to do this.

The Warning is sent to the person who entered the Caveat and they in turn have a short period of time to respond.  This is called “entering an Appearance” at the Probate Registry. 

If there is a failure to enter an Appearance, an Affidavit of Service of the Warning is lodged with the Probate Registry and the Caveat will then be removed enabling the Personal Representative to apply it for a Grant. 

If however an Appearance is entered, the Caveat remains in place until the issues are resolved and the Caveat removed by consent between the parties or by Order of the Court. In many cases it is removed by consent once substantive issues are resolved or agreed.

The Appearance sets out to the Court why the objection has been raised and also the interest the Caveator (the person filing the Caveat) has in the estate along with the reasons why the Caveat has been lodged.  The reasons for lodging it must be valid and not vindictive.

A failure to send an Appearance at the correct time or at all is likely to lead to the Grant of Representation being allowed to proceed. It is important that the Appearance covers all the relevant issues as this too may result in the Caveat being set aside and the Grant being issued.

If you wish to challenge a Will or indeed review the distribution of inheritance, it is important to obtain advice early.

For further information in relating to an inheritance dispute, contact Maninder and the Dispute Resolution team on 01604 828282 / 01908 660966 or email Litigation@franklins-sols.co.uk.

Question:

My elderly mum died recently leaving the family home, which was in her sole name as my dad died many years ago, to me and my older half-brother. He is my mum’s son from her first marriage, and is now 65, single and childless.

He has had, since he was a toddler, little or no contact with his genetic dad. I don’t know if this man is alive but I know he did go on to have other children – so my brother has at least one other half-sibling. Although again there has been no contact between them and my brother.

My brother has been living in my mum’s house for several years, since she went into a home, and wants to stay there. I’m happy for this to continue as I do not need my share of the property now. But I do want to make sure his share passes to me when he dies, as the quid pro quo for allowing him to stay there without paying anything.

He says he has made a will that leaves everything of his to me but it is apparently a DIY one, and I’m sceptical that it is legally robust. He is highly strung, and likely to respond badly if I quiz him about it.

If I do nothing and his will turns out not to be worth the paper it is written on, what are the chances of his half of the property going to someone else? And what other difficulties might I experience?

Answer:

It is always hard when a loved one dies and grief and inheritance issues can put strain on family relationships. Agreements made whilst grieving are often regretted or forgotten as time passes.

I do think you should make sure that your agreement with your half-brother is sorted out even if he finds it hard to deal with. You could always try to sell it to him along the lines of wanting to give him security and protection too.

It is much better to bite the bullet and deal with things now rather than hoping that your brother will do the right thing in the future. 

Leaving his share of the house to you by will is not the only option and don’t forget, you do have the upper hand now because you are the one who is agreeing not to sell the house and have your share immediately! You will also need to talk about practicalities such as who is going to pay for repairs, insurance, and maintenance.

It is important as well for you to have a valid will which makes clear who would inherit your share of the house, as you might die before your brother.

That is yet another reason to get matters straight now, as you don’t want to risk bequeathing a messy situation to your own heirs.

How can you ensure you inherit your share of the house, without relying on your brother’s will?

You could agree to change the terms of your late mother’s will and say that the whole house is put into a ‘Trust’ instead. Your brother can be given the right to live there for the rest of his life and you get the house when he dies.

A slightly different way of doing the same thing if your brother doesn’t like the idea of not actually owning a share of the house, would be to do a ‘declaration of Trust’ over it.

Again, although you both stay as legal owners, your brother has a right to live there and you have the right to the house when he dies.

You will both need to agree to this and do make sure you seek advice from a solicitor who specialises in Trusts so that you both understand all the pros and cons and ensure it is done properly.

How should you set up ownership of the house, if you decide against a Trust?

If you haven’t already got one, you will need to apply for a grant of probate for your late mother’s estate and you will need to update the title deeds of the house.

If you’re not going down the Trust route, you will need to decide whether you and your brother want to own the house as ‘joint tenants’ or ‘tenants in common’. These are technical terms and it is important you understand which one to go for and that your solicitor is told.

If you own the house as joint tenants then on the death of the first of you, the survivor will automatically be left owning the whole house even if their will says something different.

If you own it as tenants in common you both own separate shares which will then pass in line with what your wills say.

Joint tenants could work well for you provided your half-brother died first but of course, if you were to die first it would all pass to him.

We don’t have a crystal ball and I wouldn’t normally suggest anyone should take that risk!

 What should you ask your brother to do about his will?

If you decide to own the house as ‘tenants in common’, your brother needs to make a will which leaves his share of the house to you. Wills are technical documents and they need to be signed, dated and witnessed correctly to be valid. If he uses the wrong type of words to leave you his share in the house, it might fail and you might end up with nothing.

Far too much can go wrong with DIY wills and I strongly recommend you and he get advice from a solicitor who specialises in drafting wills and Trusts. 

If you are looking for a solicitor, try to find one who is a member of the Society of Trusts and Estate Practitioners. They will have the letters TEP after their names.

What are the risks of depending on your brother’s will?

You have to understand that your brother has the right to change his will at any time and does not have to tell you if he does so. Also, if he marries in the future, any will would automatically be cancelled.

If your brother doesn’t make a will or his DIY will is invalid or cancelled, the intestacy law will decide how his estate is shared. This sets out a strict list of relatives who will inherit and the order they inherit in is often surprising.

On the basis that your brother is not married or in a civil partnership at the date of his death and has no children of his own, the first person to inherit would be his father. You have said that you do not know he is alive but if he is, you could end up with nothing.

If his father has died, and assuming that your late mother did not have other children with her first husband, the next group of people to inherit are all the half-siblings. 

You have said that your brother’s father did have other children and so they, as well as you, will all inherit an equal share of your brother’s estate, whether he knew them or not.

I am afraid that if the will turns out to be not worth the paper it’s written on you could end up receiving nothing at all or sharing his half of the house with his other half-siblings. Likewise, if he changes his will or remarries or even if he simply loses his will, you could end up with nothing. 

What is the safest approach to ensuring you get your share of the house?

The only sure fire way of guaranteeing the outcome is to either own the property outright yourself or make sure your interest is protected by way of a Trust. 

It’s probably time to have that conversation with your brother. Good luck!

For further advice and assistance please contact our Private Client Team on 01604 828282 / 01908 660966 or email info@franklins-sols.co.uk

If an individual executes a Will they do so because they wish to dispose of their estate as they please. Equally, if an individual does not execute a Will then their estate will be distributed in accordance with the Intestacy Rules.

What if a deceased does not leave you enough or nothing at all whether in their Will or under the Intestacy Rules and you were financially dependent on them?

The Inheritance (Provision for Family and Dependants) Act 1975 (“The Act”) is an Act of Parliament that provides protection to individuals who have been financially dependant on a deceased.

The Act will come into play when a Will or the Intestacy Rules fails to provide a “reasonable financial provision”. The Act provides protection to spouses, civil partners, co-habitees, children and any other dependants who have survived the deceased and been left without the relevant means to survive.

Am I eligible to make a claim under the Act?

There are certain categories that must be explored and satisfied in order to be eligible to present a claim to Court and these are as follows:

1. The deceased must have been living in England and Wales at the time of death;
2. As an applicant, you must be one of the below as outlined in Section 1 (1) of the Act:
   • The Spouse of Civil Partner of the deceased;
   • A former Spouse or Civil Partner of the deceased who has not re-married or entered another civil partnership
   • A child of the deceased;
   • A person treated like a child by the deceased by virtue of a marriage of civil partnership;
   • A person who was immediately before death of the deceased maintained, either wholly or partly on the deceased;
   • A person who was cohabiting with the deceased and living with them for a period of at least two years.
3. If the above is satisfied, then there is a strict time limit to lodge an application to Court of six months from when the Grant of Probate or Grant of Letters of Administration was issued from the Probate Registry.

What will the Court consider when determining my application under the Act?

The Court will need to consider whether there has been reasonable financial provision for you. Determining this is subjective and based on each individual application and the Court when deciding the same will do so on several factors.

What factors will the Court consider?

The Court will need to consider the applicant’s needs and resources and consider what is reasonable for them to receive for their own maintenance. Such factors are set out in Section 3 (1) of the Act which can be found below:

“(a) the financial resources and financial needs which the applicant has or is likely to have in the foreseeable future;

(b) the financial resources and financial needs which any other applicant for an order under section 2 of this Act has or is likely to have in the foreseeable future;

(c) the financial resources and financial needs which any beneficiary of the estate of the deceased has or is likely to have in the foreseeable future;

(d) any obligations and responsibilities which the deceased had towards any applicant for an order under the said section 2 or towards any beneficiary of the estate of the deceased;

(e) the size and nature of the net estate of the deceased;

(f) any physical or mental disability of any applicant for an order under the said section 2 or any beneficiary of the estate of the deceased;

(g) any other matter, including the conduct of the applicant or any other person, which in the circumstances of the case the court may consider relevant.”

Are the above factors same for each applicant?

No. Any claim under the Act made by a spouse or civil partner are different and the Court when determining what is reasonable will look further than what is required for maintenance and consider the following factors as set out in Section 3(2) of the Act which are summarised below:

1. The age of the applicant and the duration of the marriage;
2. The contribution the applicant made to the welfare of the family;
3. What the applicant would have reasonably expected to receive had the marriage been terminated by a divorce.

Is Court the only option?

Given the time, emotion and cost that can go into pursuing such a claim it is always advisable to consider Alternative Dispute Resolution (ADR) as an option to resolving disputes at the earliest opportunity. ADR is a Court free environment and is cost effective and quicker than going to Court. Here at Franklins Solicitors LLP we embrace all forms of ADR.

Claims such as these can strain relationships and divide families. Given the strict time limits it is imperative if you are contemplating a claim under the Act to seek specialist advice to ensure a full case plan is prepared to outline your options and next steps.

If you require legal advice or assistance in regards to contentious probate and Trusts or Inheritance Act Claims, please do not hesitate to contact a member of the Dispute Resolution Team here at Franklins Solicitors either on 01604 828282/ 01908 660966 or at litigation@franklins-sols.co.uk.

Marion Horsford defeated her son, Peter Horsford over a £6 million country estate to ensure she received her share.

Peter Horsford had worked on the family farm since he was a schoolboy and purportedly sacrificed his childhood to labour on the family farm. He also alleged it had been promised that the 540-acre estate would “all be his one day.”

Mrs Horsford split from her husband in 2011 and retired from the family farming partnership and requested £2.52 million from her son for her share along with £23,000.00 in past profits. Mr Horsford who had been diagnosed with dementia was unable to clarify who was due the share of the estate.

Peter Horsford’s refusal to pay his mother was on the basis that he had received a lifetime of assurances and argued if he had to pay her, he would need to sell the farm.

Mrs Horsford however argued that she wanted fairness for her three children and that her son had already benefited from his own hard work on the farm and his parents generosity over the years.

The matter went before the High Court and Judge Rosen ruled in favour of Mrs Horsford. Judge Rosen stated that although Mrs Horsford had said previously she might leave him her share she had not promised this and therefore was entitled to the share she requested.

In delivering the judgment, Judge Rosen believed there was a clear distinction between a promise and statements of intent and referenced to Mrs Horsford’s diary wherein which she made references to her “darling daughters.”

Peter Horsford however believed it was his right to inherit the whole estate and grew up on the same assurances.

He also alleged that in order to pay his mother the £2.52 million the farm may need to be sold.

Disputes such as this can strain relationships and drive families apart. If you require legal advice or assistance in disputes surrounding Inheritance Disputes and Promissory Estoppel, then please do not hesitate to contact a member of the Dispute Resolution Team here at Franklins either on 01604 828282/01908 660966 or at litigation@franklins-sols.co.uk.

When someone dies without a Will, this is known as dying intestate. In these circumstances, the law sets out who is entitled to inherit from the deceased’s estate known as the ‘intestacy rules’.

Current Provisions

Currently, the law confirms that when a person dies without a Will, the first £250,000 (known as the statutory legacy) of the deceased’s estate will pass to a surviving spouse or civil partner. Anything above this threshold will be divided so that the surviving spouse or civil partner will receive 50% (together with the first £250,000) and any children will receive the remaining 50% equally between them. In the event that there aren’t any children, then the spouse or civil partner will receive the entire estate.

Upcoming Changes

From 6^th February 2020, the statutory legacy is increasing from £250,000 to £270,000. This essentially means that if a person dies without a Will, their spouse or civil partner will receive the first £270,000, with anything above this threshold being divided as outlined above.

Implications

This may be a welcome change for those facing the unexpected death of a spouse or civil partner, but still highlights the importance of preparing a Will to ensure that your estate will ultimately pass in accordance with your wishes.

For example, the intestacy rules may still not provide adequate provision for a surviving spouse or civil partner and could leave them in a vulnerable position where they have to sell their home, or raise enough equity, in order to release funds due to the other beneficiaries. Furthermore, the intestacy rules do not provide for those who are cohabiting which too leaves cohabitees vulnerable on the death of a partner.

If you’re looking to put a Will in place, or you’re considering updating your current Will, speak to our experienced Private Client team today on 01908 660966 / 01604 828282 or at wills@franklins-sols.co.uk

In short and simple terms – yes.

If you are named as executor in a deceased’s Will and you choose to take up such a role, you have certain responsibilities and duties, which are imposed in law.

In a recent case David Loveday was appointed executor under the late Anita Border’s Will. The terms of the Will were clear in that after testamentary debts were paid, the residuary estate would be split equally between his partner Emma Cullen and Parminder Gibbs.

Parminder Gibbs did not receive her half of the residuary estate as bequeathed under the terms of the late Mrs Border’s Will.

This was because David Loveday used the monies for holidays, a new car and to settle his debts. Following a lengthy inheritance dispute, which went to the High Court, Mrs Gibbs demanded her rightful inheritance and to remove David Loveday as executor.

Despite defying a Court order to produce bank records showing where the inheritance had gone, he later admitted he had spent it all and pleaded guilty at Woolwich Crown Court for fraud.

This is an important case indicating the right of beneficiaries to bring legal claims if an executor is refusing to provide the rightful inheritance in accordance with the terms of the Will. It also highlights the duties of an executor which are enshrined in law.

If you require legal advice or assistance on your duties as an executor or to pursue an executor for not adhering to the terms of a Will, then please do not hesitate to contact a member of the Dispute Resolution Team here at Franklins Solicitors either on 01604 828282 / 01908 660966 or at litigation@franklins-sols.co.uk.

Not necessarily.

The Court of Appeal recently held that £2.2 million paid to Hilary Harrison-Morgan had to be repaid after she inherited it from her late ex-partner and co-habitant’s estate.

The late Dr Kahrmaan started a relationship with Hilary Harrison-Morgan and once this developed they began to cohabit and then later had twin sons together. They lived together in their London home in Belgravia. They split up in 2014 with the late Dr Kahrmaan returning to Germany.

Despite Miss Harrison-Morgan and her children living in the property a development company made an offer, the terms of which rested upon the property being sold with vacant possession.

Dr Kahrmaan died whilst such discussions were ongoing leaving all the parties involved in the lurch.

The appointed executors of the late Dr Kahrmaan’s estate were his daughters from his previous relationship. Miss Harrison-Morgan alleges she struck a deal with the executors, who had the requisite authority to enter into such a deal, that the profits of the house would be split between her and the late Dr Kahrmaan’s four children.

Once sold, the £4.4 million in profits was split in accordance with the purported agreement with £2.2 million being transferred to Miss Harrison-Morgan.

Following this, one of the executors, being Alice Kahrmaan commenced legal proceedings against Miss Harrison-Morgan on the grounds that there was an express common intention constructive Trust which already existed with the late Dr Kahrmaan’s business partner and such payment was illegal and in breach of the terms of the Trust.

When the matter went before the High Court, Miss Harrison-Morgan argued that the arrangement was made with the late Dr Kahrmaan on the basis that payment would be made to her if she complied with vacant possession, which she did.

On appeal, the Court of Appeal found in favour of the executor and ordered that the money should be returned to the pre-existing Trust intended for the four children of the deceased.

All orders were stayed until the final appeal is made with the case heading for the Supreme Court.

If you require legal advice or assistance in regards to contentious probate and Trusts or Inheritance Act Claims, please do not hesitate to contact a member of the Dispute Resolution Team here at Franklins Solicitors either on 01604 828282/ 01908 660966 or at litigation@franklins-sols.co.uk.