Claims under the inheritance act on the rise

Claims are also granted decades after the deadline

It is a common mistake that people believe that a claim under the Inheritance (Provision for Family and Dependants) Act 1975 can only be brought within 6 months of the Grant being issued. This is not the case! The actual position is that a claim can be brought at any time (even before Grant) but if the claim is to be issued after 6 months, the courts permission is required first.

Historically, the courts have been slow to grant permission after 6 months (the guidance comes from a case called Re Salmon (1981)) which has led people to mistakenly believe that the 6 months deadline is an absolute cut-off date. This is NOT the case and there have been a number of recent cases which have reached High Court where the permission to issue a claim has been granted many years after the 6 month permission deadline …

Most recently was the case of Bhusate v Patel & Others (2019), where the High Court granted the permission to bring a claim under the Inheritance Act – despite it being issued OVER 25 YEARS after the deadline for doing so.

In brief:

The deceased died in 1990, aged 72 and a claim was issued 25 years and 9 months after the time limit.
The claimant was the third wife of the deceased and had one child together.
The deceased previously had 5 other children from his first wife who sadly passed away in 1971.
The estate (which was comprised of the deceased house) was valued at £135,000 at the time of death, however the current value is in the region of £850,000

This type of situation isn’t uncommon – modern family structures are making inheritance claims increasingly likely. There is no surprise that more claims are made late and there has been a trend of cases which have been brought to High Court long after the time period has elapsed:

Sargeant v Sargeant (2018) – claim granted after 10 years
Lloyd v Ayres (2018) – claim granted after 9 years
Moffat v Moffat (2016) – claim granted after 18 years
Berger v Berger (2013) – claim granted after 6 years

Do these judgements suggest a move towards a more relaxed attitude by the courts to give permission to issue claims long after the 6 month deadline has passed? It appears so. It is important to note that the Courts have complete discretion when deciding whether to give permission to issue an Inheritance Act claim. Many of these claims start with enquiries about greater provision but often then turn to the validity or otherwise of the Will too, which then calls into question the way the Will was prepared and executed.

There is no time limitation for those challenges. Either way, the importance of a robust Will file has never been greater, as a claim can arise at any time, long after the 6 month time frame. Claims are costly and risky for an individuals intended beneficiaries , so other solutions are needed to protect the individuals wishes.

A Will may also not be enough to support and ensure that the individuals intentions are met in full. The reality is that an individuals Will may well be declared invalid if poor notes are kept and the Will is later challenged. The solution is a Will Clarity Statement , it will record all notes and explore and detail the who, the why, the when and the how, within the intended wishes of the individual.

 

U-PLAN can write your Will and offer you and your chosen beneficiaries, the protection of a Will Clarity Statement – contact us here to arrange your free consultation. 

Why you need a Will Clarity Statement

Why writing a Will may not be enough

  • One In Four people would mount a legal challenge against a loved ones Will
  • Complex relationships often mean that relatives and dependants are left feeling disappointed with what they inherit
  • Estate values can be depleted by court fees or even wiped out

With todays ‘modern’  lifestyle, the increase in divorce rates, remarriage and cohabitation, together with families living further apart leading to more complicated family structures, means the need to make a Will has never been greater.

However, more complex relationships can often mean that relatives and dependants are left feeling disappointed with what they inherit. A typical example of this is intergenerational lending, perhaps a parent loaning money to one of the children to enable them to get on the property ladder now becoming common place. This can lead to disagreement on the death of that parent as to how the other children or step children are treated.

 

Its my money and so its my decision who gets what

When we decide WHO we want to benefit after we pass away, we naturally think of those closest to us and who we have an active relationship with. In English Law, the basic principle is that of  ‘testamentary freedom’ which means that people are able to leave their property to whomever they choose in their Will regardless of family connections.

 

Surely, all I need to do is write a Will that reflects my choices?

Ideally yes, however with the increased complexity of modern family structures, more people having a sizable estate to pass on can mean that it feels there is something worth fighting for, particularly at a time when emotions are running high. As a direct result of this, the legal industry is seeing a growing number of cases where people are seeking legal remedy from being left out a Will entirely, or receiving less than they expected as a deliberate act on the part of the deceased.

 

Claims

A growing ‘compensation culture’ and people becoming more aware of their legal rights from stories and articles in the media and the ability to bring a claim if there is something they see as unfair or amiss, means more of an incentive and appetite to challenge a Will. The number of inheritance disputes reaching the high court each year has soared to a record high, a trend that lawyers put down to intricacies of modern family life and rising property prices.

A recent survey by Direct Line ( cited in our last post) revealed that one in four people would mount a legal challenge against a loved ones Will if they were unhappy with it.

With more and more people relying on an inheritance to get on the property ladder or to provide for them in retirement, when someone is left out of their Will, or stands to inherit less than they were expecting, this can trigger a dispute and lead to a potential claim,

If the claim was successful, this could mean that those you specifically wanted to inherit from you could end up losing out, or even if the Will was upheld, the cost of the fees involved in the claim could seriously reduce the size of your estate, or wipe it out entirely.

 

Its all about the “Why?”

Writing a Will can be a tricky but trying to understand a loved ones Will after their death can be agonising for some.  Not being able to understand the reason “why” a decision was made, can lead to the Will being contested. People can be surprised and hurt by the contents of a Will.

The problem is that a Will only details “what” you want to happen to your property after you have gone, but does not go into the reasons “why” you want your assets to be disposed of in this way. Obviously, you will not be there in person to explain or defend your decisions which could mean your voice would go unheard against that of the person contesting the Will.

At the time of drafting your Will, you may be confident that a claim would not be made however, it is worth remembering that it is the situation at the time of death that is important and not the situation today.

 

So, what can be done?

Your wishes and reasoning for the terms of your Will are relevant and need to be given suitable weight. Its clear that its of equal importance to both accurately record all events during the instruction taking process and retain these along with the Will, in order to be able to fully respond to nay potential future claims and so protect your wishes.

Many companies rely on simply making notes when taking a clients Will instructions and store these with the Will file in case of need at a later date. Unfortunately though, these notes may be insufficient, go missing, or their meaning lost in translation with the passing of time. In direct contrast to this, we offer both Will Clarity & Execution statements which are totally unique to the legal industry.

 

What is a Will Clarity Statement?

A Will Clarity statement is something that every Will Writing company or Solicitors firm should be offering their clients when drafting their Will.  Not only does it explain the WHY behind your wishes but it also includes the WHERE, the WHEN, the HOW and the WHO.

In simple terms,  it is a statement written in plain English, setting out your wishes for the distribution of your estate on death but more importantly, the reasoning behind your decisions and the surrounding circumstances. This is automatically compiled with the information provided throughout the entire instruction taking process, ensuring that nothing is missed. The Will Clarity statement is then read, agreed, signed and stored with the Will for safekeeping.

The purpose of the Will Clarity statement is to provide guidance to your executors, trustees and family members after your death, making clear exactly what your wishes are and setting out your thought process at the time of making the Will, speaking out where a Will cannot. A Will Clarity statement can be crucial in helping to manage family and loved ones expectations, whilst deterring any potential claims against the Will.

 

The Will Execution Statement

For a Will to be valid there are three main formalities which need to be observed.

  1. The Will must be in writing.
  2. The Will must be signed by the Testator.
  3. There must be 2 independent witnesses who attest to the testators signature.

Not only does the Execution statement record the above it also reaffirms that the instruction taker is satisfied that your capacity was not in doubt at the time of execution.

 

Don’t leave it to chance

Unfortunately Wills can and will continue to be challenged by those who have been cut out or not left as much as they felt they should have been. When deciding who you want to benefit under your Will, it is necessary to carefully consider the possibility of such a challenge after your death.

 

U-PLAN can write your Will and offer you and your chosen beneficiaries, the protection of a Will Clarity Statement – contact us here to arrange your free consultation. 

 

 

 

 

How can I protect my children’s inheritance?

Without the correct ‘Bloodline Planning’ :

• Your spouse/partner and children may not inherit your share of a business

• Some or all of your children’s or grandchildren’s (Bloodline’s) inheritance may be lost

• Assets distributed to beneficiaries exposes those assets to risk

 

Assets not protected by a Trust face attack from :

• The divorce or separation settlements of future generations

• Creditors or bankruptcy claims

• Further inheritance tax bills

 

How can I protect my children’s inheritance ?

Or more commonly known as ‘Bloodline Planning’

‘Bloodline Planning’ is ensuring that your assets reach your children, grandchildren and other relatives, rather than ending up in the wrong hands.

When assets are distributed to beneficiaries, (ie they receive cash, property or others assets as a direct lump sum payment) so much can be lost. These assets are then considered to be part of the Beneficiary’s estate and be would be at risk of attack from any future Divorce Settlements, Creditors and Taxation.

U-PLAN can ensure that your children and grandchildren are able to benefit completely from the inheritance you want them to receive and at the same time, protect the family home and other assets from being lost to the costs of long term care.

Consideration should be given to what might happen if your surviving spouse were to remarry. How would this effect your own children if he/she later changed their Will in favour of the new spouse and any subsequent children?

Or, for those of you who already have children from a previous marriage, how do you ensure that they would get their fair share?

What if your children are very young or have special care needs? How can you ensure that they are fully provided for?

There may also be a business you have worked hard to build up. Logic and common sense say you would want to protect this for your family too?

Do you really want to leave it all to chance, when with our professional help to set up the correct type of planning – all these problems could be solved?

Our expertise will ensure that your assets are both fully protected from attack and immediately available to your loved ones after you are gone.

 

Asset Planning in your lifetime

Some estate planning can be made whilst you are alive. Assets could potentially be gifted to Beneficiaries before your death. The could prove extremely tax efficient in terms of Inheritance Tax, as assets gifted away are fully outside of the Donors estate seven years after the gift is made.

However, rather than gifting assets absolutely, as this would mean that these assets will again be potentially at risk from Divorce, Creditors and Long Term Care Costs, as well as adding value to the recipients estate, it would be sensible to consider gifting with the aid of Discretionary Trusts. The Discretionary Gift Trust means that, although you make a Gift to your children and grandchildren, the asset need not enter their own estate; thus protecting these assets from any possible claims on them in the future.

By Gifting to a Trust, the Donor retains full control but, can not have access to the funds.
Even if the Donor never received any benefit, but potentially could, the Gift is classed as a ‘Gift With Reservation Of Benefit’ (GWR) and the full value is deemed to be in the Donor’s estate at death for Inheritance Tax purposes, not just the initial Gift. The Gift Trust ensures that a spouse, children, grandchildren and any other named Beneficiaries can benefit at the Trustee’s discretion.

 

Access to protected assets

We recommend a Discretionary Trust called a probate trust which, while still protecting assets from attack from Care Costs, allows the Settlor access to the assets held in the Trust. The trust has a memorandum of wishes where the Settlor is also a Beneficiary. The purpose for utilising this Trust will be for ‘ Bloodline Planning’ and not Inheritance Tax Planning, as a transfer of asset by the Settlor would be a GWR.

The main uses for a Family Probate Trust are the assignment of investment bonds to ensure it will pass to those intended without the need to wait for Probate. In addition, for a single/widowed client, a proportion of the main residence can be conveyed into our Probate Trust, which can protect the house from the costs of care. Individual advice would be required as to whether this is an appropriate course of action.

 

Utilising Trusts for ‘Bloodline Planning’ 

It has been established that your children/grandchildren future inheritance can be at risk from a number of issues. Taxation is one, but inheritances can be impacted from a number of other more emotional issues such as Care Costs, where an estate can be reduced significantly in value to pay for these costs. Family homes may have to be sold, and income and investments drained, seriously reducing any subsequent inheritance.

 

Family circumstances can also be a concern

It my be that there are some family members you would wish to benefit and some that you would not. A classic scenario would be an individual who has married into the family, but who you wouldn’t want to benefit from your estate. Family disputes do occur and Divorce and/or Remarriage can greatly influence who inherits and by how much.

Subsequently, if on inheriting monies, an individual then divorces, that same inheritance is at risk.
Similarly, if an individual inherits assets but then is later subjected to bankruptcy proceedings, or has creditor liabilities, then the whole inheritance is at risk.

The correct Trusts can provide the protection and control of a multitude of assets from those risks noted before. This protection can extend from the family home, to investment products and family businesses.

There are two potential scenarios where planning can be made with Trusts. One is during your lifetime and the other is in preparation for your death. We can utilise a range of Trusts in conjunction with the Will, which will ensure that your hard earned assets are fully protected for your children and grandchildren. By its very nature, this type of planning is wholly dependant on your individual wishes, requirements and the value of your estate.

 

Contact us here to discuss how we can help with Bloodline Planning.