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making a gift on your deathbed is not as straightforward as it might seem

HOW TO CONTEST A WILL – THE DANGERS OF A TRIAL IN AN ADULT CHILD’S CLAIM UNDER THE INHERITANCE (PROVISION FOR FAMILY AND DEPENDANTS) ACT 1975

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WILL DISPUTE – THE DANGERS OF A TRIAL

We have previously highlighted the dangers of a trial in a claim under section 2 of the Inheritance (Provision for Family and Dependants) Act 1975 – see https://www.legislation.gov.uk/ukpga/1975/63).

This was recently brought into stark relief in Wellesley v Wellesley & Ors (2019) EWHC 11 (Ch). Jamie Randall of Serle Court Chambers provides an invaluable commentary at:

http://www.serlecourt.co.uk/news/article/jamie-randall-discusses-the-recent-judgment-handed-down-in-wellesley-v-wellesley-ors-2019-ewhc-11-ch
Suffice to say, the adult child (“Tara”) in Wellesley had her claim dismissed.

WILL DISPUTE – WHY IS A TRIAL DANGEROUS?

Unfortunately, there is no certainty in any civil litigation. For example, whilst you might provide what you consider to be compelling evidence of your financial needs in relation to a claim under section 2 of the Inheritance (Provision for Family and Dependants) Act 1975, it is highly likely your opponent will also provide (what they consider to be) equally compelling evidence which contradicts your own. A Judge has to decide. Toss a coin – he may not like you (although this will never be said). He has such a wide discretion under the Inheritance Act that frankly (to an extent) anything can happen at a trial. Lawyers refer to this as “litigation risk” and apply various percentages to it when advising. If you lose, they can simply say “well we told you there was a 35% risk of failure” and that your case unfortunately fell within it. None of this helps you. A no win no fee arrangement with us will naturally drive your case towards a settlement but then this is in your interests in any event. A settlement is certainty and the retention of control. If you ask a Judge to decide, you are voluntarily losing control.

WILL DISPUTE – WHAT HAPPENED IN WELLESLEY?

This, as mentioned, was a claim by an adult child under the Inheritance (Provision for Family and Dependants) Act 1975. The Claimant was the adult daughter of the seventh Earl Cowley, who left an estate valued at £1,318,403.50. She was due to receive £20,000 under the terms of his last Will which she considered was inadequate financial provision for her. There appear to have been several factual findings against her which particularly influenced the overall outcome. There had been a long estrangement which the Supreme Court in Ilott v Mitson 15 March 2017 (see https://www.supremecourt.uk/cases/uksc-2015-0203.html ) found might justify the complete rejection of the claim where the Claimant was responsible for it, which is what was found by Deputy Master Linwood here:

“….my value judgment is that on the facts as known to me today Tara’s conduct in terms of her responsibility for the extremely long estrangement for almost all of her adult life, with no reconciliation in prospect, outweighs all of the factors in her favour. I therefore conclude that the Will did not fail to make reasonable financial provision for Tara beyond her legacy of £20,000”

Other significant factual findings against her included:
1. Tara (the Claimant) could and did live within her means (in other words she didn’t actually have a financial need)
2. There was no evidence that her deceased father owed her any obligation (to support her financially as an adult)
3. Whilst Tara had ADHD there was expert evidence to the effect that this did not prevent her for working with the right support
4. Whilst Tara had made a claim partially based on her support for her disabled son, he didn’t actually live with her and there was no evidence that she had been financially responsible for him for several years.

If you consider that any of these facts and matters are likely to apply to you, or you would like to ask us for more information about our no win no fee arrangement, or you simply want us to assess your claim, then please do not hesitate to contact us for a confidential no strings chat.

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