16 November 2016

Claims against estates are on the rise. Our disputes partner Kevin Kennedy answers some questions on how these claims come about, and what can be done about them.

I’ve heard that even if I leave someone out of my Will, they can still take money from my estate. Is that true?

Not quite. In England and Wales, you can leave your property to anyone you wish by your Will, which includes choosing not to give anything to certain people, even close family members. However, if a person can show that your Will has failed to make reasonable financial provision for them, they can apply to the court to remedy this.

What does reasonable financial provision mean?

It’s deliberately vague! For anyone other than a spouse, it means what is reasonable for their maintenance – so enough for them not to live in poverty, but necessarily not so much that they live in luxury.

For spouses, what they need for their maintenance is not relevant. The court often uses what they might have received in a divorce as a starting point, which could be a lot more than they need for maintenance.

Who can make a claim against my estate?

Spouses, former spouses, children (even adult children), cohabitees and anyone who has been treated as a child of your family. However, if you have maintained anyone, even outside your immediate family, they may be able to make a claim if they are left out of your Will.

It’s not enough to simply be one of those people; they still need to show that your Will has not made reasonable financial provision for them.

What can they get?

It depends on what the court thinks is reasonable financial provision. A recent case where an estranged adult daughter brought a claim has so far awarded her around £150,000 from an estate of nearly £500,000: the Will had left everything to charity. However, the charities have appealed this decision.

But what about the people I’ve left everything to? Does the court think about them as well?

The court does have to take account of the other beneficiaries of the estate: they will consider the needs of those other beneficiaries alongside the claimant’s needs, the size of the estate, as well as any disabilities suffered by any beneficiary or the claimant.

So, have my threats to leave everything to the dog’s home lost their teeth? What can I do?

To bring a successful claim the person must still show that they need reasonable financial provision from the estate: an adult child of independent means may struggle to make a successful claim, but they could still bring a claim even if it is destined to fail.

If you are thinking of leaving less than someone might expect, it is possible to provide that they can only have that gift if they do not make a claim against the estate. They then need to consider what their chances of exceeding the gift would be if they made a claim.

Alternatively, making sure that everyone knows and understands what they can expect from a Will can help to reduce some of the tensions which might lead to a claim.

Key contact

Kevin Kennedy

Kevin Kennedy Partner

  • Estates and Land
  • Private Wealth
  • Agricultural Disputes

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