Q: My father and step-mother both passed away earlier this year. Neither of them left wills and it is not known who died first. Who will inherit their money?
A: There is recent case law on this exact point. The case of Winter v Cutler has recently been determined by the High Court. In 2016 a husband and wife were found dead at their property. It was not known who died first and their respective daughters were therefore disputing who would inherit the parent’s property. The warring step-sisters took the matter all the way to the High Court where the judge ended their three year long battle.
A 95 year old law, the Law of Property Act 1925, was relied on. That Act created a “presumption” that the elder of the two died first. Therefore, it was presumed that the husband died first in this instance and his share of the property would have consequently passed to his wife. Her daughter was therefore held to inherit the entire property and the husband’s daughter received nothing. The daughter of the husband was trying to convince the court with medical evidence that her father must have died after his wife. The court considered the evidence, but decided it was not conclusive enough.
The case highlights the importance of having a properly constituted will in place. If there is no valid will in place, a person dies “intestate” and their estate is distributed in accordance with a set of rules known as the intestacy rules. If a husband or wife dies, then their spouse (or civil partner) keeps all the assets, including property, up to £250,000 and all of their personal possessions whatever their value. The remainder of the person’s estate is then split – half to the spouse and the other half equally between any children. Please note though, that does not include step-children. Again, this is another reason why making a will is so important, particularly in step-families.
It is also vital to consider when purchasing a property, how the legal title is held. There are two ways in which this can be done. Either, as tenants in common, in which case a person is entitled to leave their share of the property to whomever they choose and is named in their will, or as joint tenants, where the survivorship rule applies, i.e. on the death of one of the co-owners, the property automatically passes to the surviving co-owner.
In your particular instance, there will be a number of factors that will need to be considered, including how your father and step-mother’s property, if any, was held. It is likely that the Winter v Cutler case will remain good law for the time being and therefore in situations such as yours, it is likely that the older of your father and step-mother will be held to have died first. As there were no wills in place, his or her estate will then be distributed in accordance with the intestacy rules.
Q: My father died in February of this year. He changed his will shortly before his death to leave everything to his new girlfriend so my brother and I have been left out. It does not seem fair, is there anything we can do?
A: Unfortunately, it is not the case that you are able to contest a will simply because you believe it to be unfair. There are only limited grounds on which you can legally challenge a will including:
- Lack of proper formalities – the will needs to satisfy all of the legal formalities. We would need to see a copy of your father’s will to see if these formalities have been met
- Lack of testamentary capacity – i.e. whether your father understood that he was making a will and had the necessary mental capacity to do so. We would need to consider whether your father had dementia for example or any other illness that may have affected his mind at the time
- Lack of knowledge and approval – your father must have known and approved the contents of his will and appreciated the extent of what he was giving to whom, i.e. that he was excluding his children in favour of his girlfriend. It is often closely related with testamentary capacity above and we would need more information to make a judgment here
- Undue influence and fraud – for this challenge to succeed there must be coercion or fraud. There is a very high threshold to challenge a will on this basis and it is rarely brought as a claim on its own but is more commonly added to another challenge for example lack of capacity. Again, it is something we could discuss to see if it is of relevance.
Before considering making any potential challenge to your father’s will, it is worth checking whether you benefit from any earlier will he made, as if you were to be successful in your claim, it would be the previous valid will that would be admitted to probate.
It is common to request a copy of the file from the solicitors who prepared the will in order to review the circumstances surrounding the making of it and to request copies of any previous wills.
It is also worth considering as a separate type of claim whether you and your brother could bring a claim for financial provision from the estate under the Inheritance (Provision for Family and Dependants) Act 1975. As an adult child (as with spouses, dependants and limited others) you could bring a claim on the basis that the provision you receive is not reasonable. In order to assess such a claim we would need to look at a number of factors, including amongst others: your financial position versus the girlfriend of your father and the size of the estate. You would have to act quickly as you only have six months from the date of the grant of probate to bring such a claim.
It is very important to assess the merits of such claims very early as the costs in bringing them can quickly become disproportionate.
Q. I have been cut out of my parents Will, what can I do?
A. One or more of a number of claims could be considered, depending on your particular circumstances. Broadly these comprise of probate claims, claims under the Inheritance (Provision for Family & Dependants) Act 1975, or claims for proprietary estoppel.
Probate claims are claims challenging the validity of a Will. Challenges can be brought on various grounds as detailed below:
the deceased lacking the necessary mental capacity at the time of providing instructions to their solicitors to prepare the Will or when executing the Will;
the deceased not having a full appreciation of the size of their estate and the various people who may lay claim to it when making their Will;
the deceased being subject to the undue influence of someone else when making their Will; or
the Will not being validly executed.
A 1975 Act claim is based on the Will being valid but the deceased having made inadequate (or no) provision for close family members or dependants. To bring such a claim you must fall into one of the categories of eligible people – which includes children (particularly but not exclusively minor children) or others treated as children of the family even if not the deceased’s biological child. Any court proceedings must be issued within six months from the date of the grant of probate.
Finally, proprietary estoppel claims are claims where the deceased made a clear promise during their lifetime to the effect that the claimant would inherit certain specific property, and the claimant relied on that promise to their detriment. For example; giving up your life to work on the family farm for low wages in reliance upon the promise that the farm would be yours, but this promise not being honoured in the Will.
Q. If court proceedings are necessary, how can I fund the claim?
A. A pre-action protocol process must be followed before launching into court proceedings. Full details of the legal and factual basis of your claim must be provided in writing, supported by any key documents, and a full written response has to be provided. Hopefully this will then lead to settlement discussions (eg via negotiation or mediation), but if it does not, or if one party refuses to engage properly in the protocol process, court proceedings may be necessary. They will also be necessary if a limitation deadline is imminent (eg if nearly six months has passed from the grant of probate and you have a 1975 Act claim) but it may be possible to start your claim and then agree with your opponent to put it on hold so you can then go through the protocol process.
Claims are expensive to run through the court, even if you reach a settlement before trial. Often a barrister’s fees and an expert’s fees have to be paid as well as court fees and solicitors’ fees. Trials are also inherently risky, and the stakes are high.
For strong claims worth £100,000 or more against financially secure opponents, a team approach involving the client, the solicitor, a third party litigation funder and an insurer is likely to be best. Essentially the client pays about 30% of the solicitor’s fees as the case proceeds but none of the other expenses; if the case is won or a settlement is negotiated, the solicitor and funder share the winnings with the client, but if the case is lost nearly all of the client’s 30% contribution is refunded and the exposure for the opponents’ costs is fully insured. It is what we call virtually risk-free litigation.
If you would like to discuss the issues detailed above please contact Monika Byrska , Partner, 01892 701314.