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Could your estate be at risk from a claim after your death?

on Tuesday, 17 May 2016.

Recently there has been a lot of publicity surrounding the case of Heather Ilott, who successfully claimed against her mother, Melita's estate after she died.

Melita and Heather had been estranged for over 20 years and Melita excluded Heather entirely from her Will, choosing instead to leave everything to various different charities.

Heather's claim was successful and she was ultimately awarded around one third of Melita's total estate by the Court of Appeal. However, the story continues as the charities have successfully applied for the Court of Appeal's decision to be reviewed by the Supreme Court in December.

Can you protect your estate?

Understandably, the case has generated much concern about the risk of claims being brought by adult children against their parents' estates. So what can be done to minimise the risks?

It is not possible to absolutely prevent a claim being brought, because Parliament passed the Inheritance (Provision for Family and Dependants) Act in 1975, which entitles certain types of people  to claim. These include minor and adult children, spouses and civil partners, cohabitees of at least two years duration and people who have been financially maintained by the person who has died.

Whether a claim will succeed depends on many factors, including how much, if any, provision has been made for the claimant by the deceased. Each case will be assessed on its own merits. However, there are steps you can take to address these risks if you receive the appropriate legal advice.

Forfeiture clauses

You can add a professionally drafted clause to your Will - gifting a legacy, typically a sum of money, to the particular person who represents a risk. Bizarre as this may sound, the legacy will only be paid out if the person does not bring a claim so this can act as a powerful potential deterrent to a claim for a more substantial sum being brought and succeeding.

Letter of Wishes

You can write a Letter of Wishes, stating the reasons why you have chosen to exclude a particular person from your Will. Specialist legal advice should always be taken on the preparation of such letters as a poorly drafted Letter of Wishes can back-fire and help to strengthen a claimant's case, rather than weaken it.

Choose your executors carefully

We frequently see family members appointed as executors, who are then faced with the unpleasant task of dealing with a claim made by another family member or another individual against the estate. This generally causes great emotional distress and the executor will be joined to the court proceedings. For these reasons, we often advise that professional executors be appointed in cases where a claim is envisaged.

It is vital to seek skilled professional advice when preparing your Will. We frequently identify the risk of such claims being brought when taking Will instructions from clients, and advise on the best protective steps to minimise the risks to their estate.

For specialist advice in this area, please contact Michelle Rose on 0117 314 5246.

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