Wills, trusts and estate disputes

The first and key question to ask is “has the deceased’s estate made reasonable and financial provision?”

For the wife, husband or civil partner of the deceased, there is an objective assessment of what it is reasonable for the claimant to receive and the courts will often apply ‘the deemed divorce test’. In other words, if the parties had divorced, rather than one spouse dying, what financial settlement would have been reached? The court takes a number of factors into account, including the length of the marriage, and the contribution made by the claimant to looking after home and family.

There are 7 specific factors that the court will take into account:

• the claimant’s current financial resources and likely future needs
• the financial needs of any other claimant (such as children)
• the financial needs of other beneficiaries
• any obligations and responsibilities of the deceased towards other claimants or beneficiaries
• the size and nature of the deceased’s net estate
• any physical or mental disability of any other claimants and/or beneficiaries
• anything else that may be considered relevant, such as the conduct of the claimant

The Court can award an absolute capital sum, income, the right to purchase a property amongst others.

A child of the deceased can bring a claim but they must show that what they ought to have received in the Will is an amount that would be reasonable in all the circumstances to receive for their maintenance. 

The claimant must have some reason why it was unreasonable in the circumstances that no, or no greater, provision was in fact made beyond the mere fact of a blood relationship.

Adult children who are financially secure have slim chances of succeeding according to recent cases though the claim should still be assessed like any other particularly if they are suffering from a disability.

A cohabitee is someone who was living with the deceased for at least two years immediately before their death.

Claims by cohabiting partners of the deceased would also be considered against the 7 factors mention in the spouse section above. Although the ‘divorce test’ could not be applied, regardless of how long they have lived together, the court would consider what reasonable financial provision would be required for maintaining the claimant’s standard of living.

Our expert team of solicitors can also help you if you are facing an Inheritance Act claim where you are a beneficiary or an executor/personal representative.

As a beneficiary your priority will often be to ensure that as much of the estate is preserved as possible, and to protect your interest in the estate. We have a proven track record in cases like these.

On the other hand, if you are an executor, you often have a duty to remain neutral as well as to comply with strict procedural requirements. We are on hand to guide you through the legal process

Without a will his considerable estate will be distributed in accordance with the statutory provisions and, as he and our client were never legally married, it will pass to distant family with whom he had little contact.