When will your wishes in your will not be followed?

Garner & Hancock, Family Law - Grandparent Visiting Rights

 

Imagine you open your parent’s Will and realise that you have not been left anything. Alternatively, you may be one of the parents having inclinations to leave someone close to you out of your will for a reason which seems reasonable to you. If any of the above two situations happen to you, please contact our private client department and have the benefit of discussing your situation with our specialists in the area.

For the purposes of this article, let’s suppose that you find out you have been disinherited while genuinely expecting to receive from a deceased’s Will. The starting point is that England & Wales is a jurisdiction which allows testators complete testamentary freedom. This means the freedom to leave your assets to anyone you want in your will. Having said this, it is important to note that this freedom comes with limitations under the Inheritance (Provision for Family and Dependants) Act 1975 (“the Act”).

The Act works as a tool to bring a degree of fairness into unfair dispositions of estates. In practice, the courts have a power to restore the minimum necessary fairness that the deceased lacked when making their Will. The court can provide a disappointed beneficiary with reasonable financial provisions based on their needs if they are in one of the categories of close relation set out in the act, including children, spouses, co-habiting partners, and anyone else who was being maintained by the deceased at the time of their death. However, the disinherited individual must prove that the deceased failed to consider their needs when making their Will.

In monetary terms this means that a disinherited spouse or civil partner may be able to claim a proportion of capital and income from the estate. A disinherited child, co-habiting partner, or other dependant may be given reasonable maintenance during their lifetime, as awarded in Ilott v Blue Cross (2017 USKC 17).

A recent case of Banfield v Cambell (2018 EWHC 1943 Ch.) in which Mr Daniel Flynn of this firm acted for the defendant, considered what a disabled cohabiting partner who was left mostly disinherited should be awarded. Mr Banfield lived with the deceased for about 20 years and the court held that he relied on accommodation provided by the deceased. Mr Banfield claimed that this meant that he should be entitled to more than half of the capital from the estate. Mr Campbell, represented by this firm, argued that the deceased had intended that her estate should go to him and that any financial provision should be limited to a lifetime loan to Mr Banfield. The court agreed that Mr Banfield should recover a part of the estate but that this should be a lifetime loan to him, to be returned to Mr Campbell on Mr Banfield’s death. This case is reported in more detail by the Society of Trusts and Estates Practitioners here.

Putting your loved-ones in a situation when they start litigating over an estate is a stressful and costly adventure, which often causes breakdown in family relations and also significantly depletes the estate available to the intended beneficiaries. Please consult Nigel George or Jakub Kotan from our private client department on 020 8232 9560 to receive further guidance.

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