Obtaining professional advice is essential when preparing a Will. Apart from anything else, a poorly drafted Will may open the door to claims against your estate, as well as leaving disappointed beneficiaries and unfulfilled succession plans in your wake when you die.
The two most common claims against an estate are:
- proprietary estoppel; and
- a claim for maintenance under the Inheritance (Provision for Family and Dependents) Act 1975 (“1975 Act”).
A proprietary estoppel claim arises when a representation or assurance was made by the deceased to the claimant that the claimant has (or will have) some right over the deceased’s property. This is often (though not always) land. The claimant must also have reasonably relied on this claim to their detriment.
You may not have intended to create any such right over your estate, but a valid claim may be made, whether or not the representation was intended. Obtaining legal advice can prevent a claim arising, for example by putting in place a cohabitation agreement, which clearly delineates the rights of the parties over the land or other assets in question.
Under the 1975 Act, an individual whom you are financially maintaining may make a claim to your estate in the absence of sufficient provision under your Will. In addition, a cohabitant can claim financial maintenance, while a spouse can claim more than mere maintenance but something at a level regarded as reasonable financial provision. When assessing a maintenance claim for a cohabitee, their own assets and resources are considered. These factors are not taken into consideration for a spouse because a reasonable sum may be far higher than that required for their maintenance.
Obtaining professional advice can mitigate the possibility of such claims by ensuring your Will provides sufficient financial provision for those entitled. There are also other preventative steps you can take to avoid a claim. For example, you may unknowingly invite a claim from someone by financially maintaining them during your lifetime, such as an adult child or a close friend.
Any claims delay the administration of an estate and reduce the existing beneficiaries’ inheritance, given that the fees for defending such a claim are ordinarily paid by the estate itself. If a claimant succeeds, there is no predicting how significant an impact this may have on the assets available for distribution to the original intended beneficiaries.
A disputed probate can be extremely emotional and stressful for those involved so it is important you have support throughout.
The importance of obtaining specialist advice cannot be overstated, especially in the context of avoiding potential claims against your estate.
How we can help
The Private Wealth Team listen to what clients want to achieve and can translate that into the appropriate structure and plan. By taking account of the potential pitfalls, it is possible to prevent unintended consequences at a later stage. Our team advises on the full array of contentious and non-contentious trusts and are therefore fully aware of how to mitigate your estate’s exposure to issues in the future.