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in an inheritance dispute proprietary estoppel may assist where a promise that was made is not kept in a will

5 Things to Know about Proprietary Estoppel

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Proprietary estoppel is a principle that courts use to resolve disputes. Proprietary Estoppel arises when a defendant has made promises or assurances that property will pass to the claimant, and the claimant has relied on these assurances to their detriment.

For example, in Gillett v Holt [2001] Ch 210, a farmer, Mr Holt, made assurances to Mr Gillett that if he worked on his farm for far below the market rate for his work, Mr Gillett and his wife would inherit the property. When Mr Holt tried to give the property to someone else, the court ruled against him- he could not go back on his promise, as Mr Gillett had relied on it to his detriment. Proprietary estoppel arises in will disputes when someone has been promised property, has acted on this promise to their detriment, and then they are not left the property in the person’s will.

  1. Land and Farming

Proprietary estoppel relates to promises that are made with regards to land, and detrimental reliance is often established when the claimant has worked on the land. For this reason, proprietary estoppel cases often involve agricultural land.

For example, in the recent case of Habberfield v Habberfield [2018] EWHC 317 (Ch), a farmer’s daughter was promised that she would inherit the farm, and acted to her detriment by working on the farm for several decades and establishing a dairy farm on the land. When her father passed away and the

farm was not left to the daughter in the will, the courts used proprietary estoppel to establish her right to the value of the farm.

However, proprietary estoppel is not just for farm related will disputes: in the leading case of Pascoe v Turner [1979] 1 WLR 431, an unmarried couple lived together. The man told his partner that the house was hers, and she carried out significant improvements on the property. The court ruled in her favour as she had acted to her detriment in reliance on his assurances.

  1. Assurances

 When a will dispute gives rise to proprietary estoppel, it will be necessary for the claimant to establish that assurances, or promises, have been made. There is no set rule as to what exactly amounts to an assurance, and the court will look at evidence of what the testator said to the claimant.

As the testator will have passed away before the dispute, witness statements from third parties who do not have anything to gain from the dispute are of vital importance to a court, as they give an account of the relationship between the parties and any promise or understanding that was reached regarding the property. 

  1. Reliance

The claimant has to show that they acted in reliance on the assurances. Giving up the opportunity of paid work, making an expensive decision to move home, or working on the land itself are actions that can be regarded as reliance on a promise of inheriting land. 

  1. Detriment

Detriment can be established either by showing that the claimant has suffered loss as a direct consequence of their reliance on the defendant’s promises, or that they would have been in a better financial situation if they had done otherwise.

The extent of the detriment is a factor that is used when deciding on the nature and extent of the appropriate remedy. 

  1. Remedies in proprietary estoppel cases

Proprietary Estoppel can give rise to a wide range of remedies, from a transfer of the property into the name of the claimant, to damages in the amount of the property that was promised, or the loss that was suffered by the claimant. In Jennings v Rice [2002] EWCA Civ 159, the court decided that the appropriate remedy for a proprietary estoppel will dispute was the minimum amount necessary to “satisfy the equity”, i.e the minimum amount to make the situation fair.

If a claimant can successfully show assurances, reliance and detriment, then the court will use proprietary estoppel to consider the appropriate remedy for the situation.

If you are considering a will dispute, and you think proprietary estoppel may be involved, you will undoubtedly need legal advice to set out your claim in the best terms possible. Will Claim solicitors specialise in will disputes and have many years’ experience in this field. Get in touch to find out more about our services.

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in an inheritance dispute proprietary estoppel may assist where a promise that was made is not kept in a will

Proprietary Estoppel in an Inheritance Dispute

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Proprietary Estoppel is a legal term that can mean very little to anyone who isn’t a lawyer. In an inheritance dispute, proprietary estoppel can offer a small but practical ray of hope when a will doesn’t reflect a promise that was made to someone by the testator while he or she was alive.

What is Proprietary Estoppel?

Proprietary estoppel is a principle used in the courts to allow individuals to gain certain rights over property that legally belongs to someone else. This method is used when the legal owner of property enforces his or her strict rights in a way that is unfair to someone with an interest in that property. The principle of proprietary estoppel is based on a promise by the owner, upon which someone else has acted to their detriment.

On example of proprietary estoppel at work in an inheritance dispute is the case of Gillett v Holt [2001] Ch 210. In this inheritance dispute, the legal owner of a farm made promises that Mr Gillett would inherit his property, and Mr Holt acted to his detriment by working on the farm for decades and turning down other employment due to Mr Holt’s repeated promises that Mr Gillett would inherit the farm. The court decided that it would be unconscionable for Mr Holt to break that promise and ruled in Mr Gillett’s favour.

Another proprietary estoppel case involving a farm, is the recent High Court case, Habberfield v Habberfield [2018] EWHC 317 (Ch). Lucy Habberfield successfully claimed over £1 million after her father died, leaving his farm to his wife.

The inheritance dispute in Habberfield v Habberfield

For over 30 years, Lucy Habberfield worked on Woodrow Farm, which belonged to her father Frank. When Lucy left school at 16 years old, her father introduced cows onto the farm because Lucy had agreed to look after the dairy farm operation. Mr Justice Birss, the judge in the case, commented,

 “Based on the evidence of a number of witnesses before me, it is plain that the work done by family members on a family run dairy farm involves an intense degree of commitment and effort.”

Frank Habberfield died in 2014, leaving the farm and all of his property to his wife Jane Habberfield, Lucy’s mother, in a will that was written in 1998. Lucy made a claim of proprietary estoppel on the basis that she had worked on the farm because of her father’s repeated promises that she would run the farm upon his retirement, and eventually inherit the property. Lucy’s mother Jane contested this view, and claimed that no such promises had been made.

The Judgement

As well as evidence from witnesses describing Lucy’s position on the farm, Lucy’s case relied heavily on a letter written in 2008 from a chartered surveyor to Jane and Frank. The letter advised the couple to establish a limited partnership on the basis that their plan was to leave the farm property to Lucy when they both died. The letter was considered to be evidence of Frank’s intention that Lucy should inherit the farm eventually, and supported her claims that Frank had repeatedly promised that she would inherit the farm.

Proprietary estoppel requires the claimant to have acted to their detriment on the basis of promises made. Lucy and her husband raised their children on the farm, and Lucy claimed she had worked long hours and holidays for low pay, based on the promises her father made that she would inherit a dairy farm at Woodrow. The judge found that Lucy had kept her end of the bargain by working on the farm, and therefore it would be unfair not to enforce the promise.

Remedy

Jane, her son and grandson were still living in the farmhouse, so the judge said it would be unfair to split the property, or to remove Jane from her home. Instead, the judge decided to award the cash value of Woodrow Farm including the dairy farm buildings: a total award to Lucy of £1,170,000.

Conclusions

It is common for proprietary estoppel cases to involve farmland. It is therefore important for people who own a farm, or another form of family business, to establish with transparency, a clear plan for what happens to the business when the person in charge dies or retires. The case of Habberfield v Habberfield serves to illustrate the importance of making up-to-date wills, especially for family business owners, to avoid broken promises.

If you are considering an inheritance dispute, it is always worth talking to a solicitor who specialises in contentious probate and will disputes. We offer a free claim assessment to take a look at your inheritance dispute and provide initial advice. If you decide to proceed, we can usually act on a no win no fee basis too.

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A no win no fee arrangement can be a great way to handle legal costs in a will claim

The benefits of a no win no fee agreement in a will dispute

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When you are thinking about any kind of legal action, a key concern will be the legal costs involved. It is no different when you are planning to challenge a will. It is a complex area of law, and you will need specialist legal advice and support to help you navigate the process, and succeed in your will claim. A no win no fee arrangement offers a sensible approach to funding your will dispute.

What is a no win no fee arrangement?

A ‘no win no fee’ arrangement is just that. It’s an agreement that you enter into with your solicitor that says that if you don’t win your case, you don’t have to pay your solicitor their legal fees. Of course, if you do win, you will have to pay your solicitor – but you will have won your case at that stage, so you will be better placed to have the legal fees.

How can a no win no fee arrangement help?

Primarily, a no win no fee arrangement helps you because you don’t have to worry about legal fees at a time when you will already be upset and vulnerable. You can consult your solicitor, receive advice about the strength of your claim and find out about the process and what will be involved, without the wondering whether you will be able to afford it.

What about initial advice?

You may take initial advice about your will dispute and decide not to take it any further. Here at Willclaim, we offer an initial, free claim assessment which should give you enough information to decide whether you want to pursue the matter and challenge the will – or not.

Will I have to pay the legal fees from the inheritance?

Assuming you succeed in your will dispute, you will receive the inheritance, or at least a portion of it – that you were looking for. You will probably be reluctant to pay some of that over in legal fees – but the good news is that in many cases, if you succeed in your claim, we will be able to recover our legal costs from the other side, or from the estate itself. This isn’t always the case, though, and you may have to pay some of your newly received inheritance in legal fees. It is a consideration of any litigation whether the costs of the legal action will outweigh the benefits of succeeding in the claim.

Are there any alternatives to a no win no fee arrangement?

You can agree to pay your legal costs as they arise without entering into a no win no fee arrangement if you wish to do so. Another possibility is legal expenses insurance – which you may have as part of your household insurance. This won’t always cover this kind of legal dispute but it is worth checking. It is also possible to take out ‘After the Event’ insurance. The premium is only payable once costs are recovered, and if you don’t win your claim, you do not pay anything (as in ‘no win no fee’). However, as these policies cover the other side’s costs following court proceedings, there is often no need for ATE insurance as most will dispute claims are settled out of court and before proceedings are issued.

Will I be able to use a no win no fee arrangement?

We can offer a no win no fee arrangement in nearly all the will dispute cases we take on. Making applications to see documents that you may not have had a chance to look at – the will itself, medical evidence and other documentation, can help you decide whether to continue with the claim early on. We will apply for what is known as ‘pre-action disclosure’ from the other side, and with those documents available, we will advise you whether the claim is worth pursuing, and whether we can work under a no win no fee arrangement.

Taking the decision to challenge a will is a big step. We are experts in will disputes and offer a dedicated team of professionals to guide you through the process. A ‘no win no fee’ arrangement is one practical way we can support you through this difficult time.

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Does an adult child have to have a moral claim to succeed under the Inheritance Act?

The ‘moral claim’ of an adult child

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Does an adult child have to have a ‘moral claim’ to part of a parent’s estate in order to succeed in a claim under the Inheritance Act?

The Inheritance (Provision for Family and Dependants) Act 1975 allows an adult child to claim maintenance from the estate of a parent who has disinherited him entirely or left him only a small legacy. Whether the claim succeeds depends on the outcome of a careful balancing act. It requires the court to look at the circumstances of the claimant, and of other beneficiaries or potential claimants, and the size of the estate itself. A claimant who is able to support him or herself independently may have to show a moral claim in order to succeed with the claim.

The circumstances of the Claimant

The Inheritance Act, and more particularly claims by adult children under the Act, has been in the spotlight recently as it was the subject of a long running dispute recently determined by the Supreme Court. In the case of Ilott v Blue Cross & Others, the adult child, Heather Ilott, had been disinherited by her mother who disapproved of her choice of partner. The mother had rejected attempts at reconciliation and left her estate to a number of animal charities. The daughter had not done well in life, but lived independently with her partner and children, although most of their income came from benefits. She sought maintenance from her mother’s estate under the Inheritance Act, a claim the charities defended vigorously.

Within her arguments, Mrs Ilott asserted a moral claim to maintenance from her mother’s estate. The basis of this was that the estrangement was largely of the mother’s doing, and that she, the daughter, had attempted to seek a reconciliation, but had been rejected.

A moral claim – or some other obligation

It’s clear from the decision in Ilott that a moral claim is not an essential element of an Inheritance act claim. However, if the adult child is living independently and capable of doing so, there needs to be ‘something more’ for a claim for maintenance under the Act to succeed, however modest the income. This would be some kind of moral obligation, or some other responsibility owed by the parent to the child.

In the earlier case of re Coventry, the court made it clear that an adult child who was capable of supporting himself and had an income, albeit a small one, would not succeed in an Inheritance Act claim without ‘something more’:

There must, as it seems to me, be established some sort of moral claim by the applicant to be maintained by the deceased or at the expense of his estate beyond the mere fact of a blood relationship, some reason why it can be said that, in the circumstances, it is unreasonable that no or no greater provision was in fact made

Estrangement where the child sought reconciliation

In circumstances which bore some similarity to the Ilott case, the courts recently considered a case where the father had disinherited his children as they had not been to see him for many years. The claimant in Nahajec v Fowles, the Testator’s daughter from his second marriage, argued that the estrangement was largely due to her father’s behaviour and she had attempted reconciliations only to be rebuffed by him. The claim succeeded, and the daughter was awarded a sum to allow her to complete a veterinary nurse qualification.

Victims of abuse

There have been cases where an adult child has brought a claim against the estate of a parent who abused them. In the case of Marks v Shafier [2001] All ER (D) 193 (Jul), the court accepted that this could be sufficient to allow a claim under the Act. However, in the recent case of Ball v Ball, the abusing parent was the father and the will in question was the will of the mother, the abuser’s wife. Mrs Ball was upset that the children concerned took the abuse allegations to the police, after it had been dealt with within the family, and disinherited her children. In that case, the court made it clear that “…sexual abuse by someone other than the deceased does not have the same impact” [para 81 Ball v Ball].

There have been suggestions that the comments in Re Coventry about “some sort of moral claim” alluded to the need for a moral obligation in every Inheritance Act claim brought by an adult child. This is not the case. However, where an adult child is independent – however meagre that independence might be – there does need to be something more than just the relationship for the claim to succeed.

If you’d like to discuss the possibility of bringing an Inheritance Act claim for maintenance in respect of your parent’s will, we can help. Specialising in will disputes and Inheritance Act claims, we offer a free claim assessment, and will handle most claims on a ‘no win no fee’ arrangements.

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A country cottage may not have been left to you but you may still be able to claim maintenance from a loved one's estate

Maintained by the deceased – Inheritance Act claims

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The Inheritance (Provision for Family and Dependants) Act 1975 allows claims for ‘maintenance’ from a deceased’s estate by “a person who immediately before the death of the deceased was being maintained either wholly or partly by the deceased” (Section 1(1)(e)). In the case of Kenneth Paul King v The Chiltern Dog Rescue, Redwings Horse Sanctuary [2015] EWCA Civ 581, the Court of Appeal had to review the situation where the person claiming ‘maintenance’ had also been providing ‘services’ to the deceased immediately prior to the death.

The Facts

This case also concerned the question of the conditions necessary for a deathbed gift. We have set out the facts in an earlier blog which is available to read on our website. The relevant points for this blog are that Mr King went to live with his aunt in 2007. The arrangement suited them both –he had a place to live and ‘subsistence’ from his aunt; she had someone to care for him as she became older and frailer. On the aunt’s death, Mr King claimed that she had made a deathbed gift of her house to him. Alternatively, that if she had not made such a gift, he claimed that he fell within section 1(1)(e) of the Inheritance Act 1975 and had been maintained by his aunt before her death.

The judge at first instance agreed that there was a deathbed gift. However, he went on to rule that if he was wrong on that point, Mr King had been ‘maintained’ by his aunt and should receive £75,000 from the estate. The charities appealed on both counts, not only challenging the deathbed gift, but also arguing that the maintenance award was excessive. Mr King also appealed the maintenance award, arguing that he should receive more than £75,000.

The Court of Appeal disagreed with the judge at first instance and held that there was not a valid deathbed gift of the aunt’s house to Mr King. Accordingly, the appeal by the charities, succeeded on this point. However, the Court of Appeal rejected both appeals on the question of maintenance holding that the assessment by the judge at first instance was correct.

  • The judge recognised that the relationship between Mr King and his aunt was mutually beneficial, so he had to look at the balance of that relationship.
  • He found that Mr King was a dependant of his aunt. The valid will (pre-dating the purported deathbed gift) had made no provision for him, so he was entitled to maintenance under the Inheritance Act 1975.
  • The assessment by the judge of the amount of maintenance should stand

Assessing dependency when each is providing the other services or money’s worth

Given that the aunt was providing Mr King board and lodging and essentially supporting him in return for Mr King being her ‘carer’, the court had to assess whether there was a dependence by Mr King on the aunt. The leading case is Jelley Iliffe [1981] Fam 128. The court must look at the benefit on each side, and whether one person benefited more from the arrangement than the other. The Court of Appeal in Jelley recognised that this was a careful exercise to carry out, and would be a question of evaluating the facts in each case. In this case, the judge at first instance found that Mr King had more benefit from the arrangement than his aunt did, and that he was dependant on her: the provision by the aunt of board and lodgings for her nephew for 4 years amounted to ‘maintenance’. The judge also recognised that the attempts by the aunt to execute a will leaving her property to the nephew amounted to recognition by her of a responsibility towards her nephew.

If you have been supported by a relative or close friend immediately before their death, and their will leaves nothing to you,  we can talk you through the logistics and practicalities of bringing a claim under the Inheritance Act. We offer a free claims assessment service, and can usually handle cases on a no win no fee basis.

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The Royal Courts of Justice

How easy is it to contest a will successfully?

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If you’re considering legal action to contest a will, the chances are you will be trying to work out which firm of solicitors to use to represent you. And no doubt, one of the big questions you want answered is how easy is it to contest a will – and win? It’s a worthwhile question to ask. Legal action of any kind can be stressful and exhausting; it can also be expensive. Legal action to contest a will is no different – so just how easy is it to successfully contest a will?

‘Unfairness’ doesn’t come into it

If it were possible to overturn a will simply by showing that it was ‘unfair’, then the answer to the question “How easy is it to contest a will successfully?” would be “Very easy”. Many people feel that they have been treated unfairly or unjustly by a loved one in a will – but this is not sufficient to contest the will successfully. As the Supreme Court has recently confirmed in the case of Ilott v Blue Cross, English law upholds the principle of ‘testamentary freedom’ meaning that people are free to leave their property as they wish, however unfair the result of that may be.

Leaving aside ‘unfairness’ as the grounds for contesting a will, you must therefore decide whether the challenge is based on an argument that the will is invalid (and so an earlier will, or the intestacy rules apply), or that the will itself is valid, but you should have received ‘a bigger share’ or the estate.

Evidence to contest a will

As with any legal dispute, the strength of your claim in respect of a will depends on the evidence. You must prove that the will is invalid for a legally acceptable reason – for example because the person making the will, the Testator, did not have the capacity to make the will, or because he or she had been subjected to undue influence. And here is one of the first difficulties in overturning a will: there is often very little evidence to show that anything untoward has happened. If there is evidence, it is often very old – and the person who would be in the best position to explain the will – the Testator – is no longer around to explain.

Evidence such as medical records are important if you are claiming that the Testator did not have testamentary capacity to make the will; but medical notes are prepared in relation to medical treatment, and not with a view to future legal action. It’s often the case that medical records don’t provide a complete answer for the purposes of a will dispute.

If you feel that undue influence has been brought to bear on your relation resulting in the will being drawn up in a particular way, it can be even more difficult to contest the will. There is unlikely to be any concrete evidence, and for a claim to succeed, the court must be satisfied that the will could only have been created in such a way as the result of undue influence.

Alternatively, if you are not challenging the validity of the will but the way an estate has been shared out, in a claim under the Inheritance Act, you must show that you have a financial need and depending on the nature of your claim that you were in some way dependent upon the Testator, that he owed you a legal obligation as his spouse or alternatively that even though you are his adult child, he owed you a special moral obligation (for instance because of your ill health, dependency or where there is a situation of historical abuse).

A question of cost

Even assuming there is sufficient evidence to contest a will, you must also consider the costs that a legal action will incur. We offer a ‘no win no fee’ service in almost all will dispute actions that we handle for clients – this limits your liability if your case gets as far as the courts and you do not win your case; if you do win, you will need to pay the legal costs. The losing party may be ordered to pay these, but it may be that the costs all but wipe out the financial value of your victory.

We very much favour using dispute resolution – mediation for example – as a means of resolving will disputes without going to court. Mediation is a quicker, less costly way to resolve a will dispute, and can often result in an outcome which is more suitable than an order of the court. There may still be costs to pay.

You should also consider the emotional cost of challenging a will. Legal action can be all consuming, especially in such a highly-charged scenario as a will dispute. Even if, on the facts, and with the evidence you have, the case is likely to be successful, you may still find the emotional cost of the action is high.

Take a realistic view

You may think it surprising that as will dispute specialists, we are setting out some of the difficulties that people face when they are looking to contest a will. Of course, each case is different, and we look at each case individually. However, we believe that it is best to have all the facts out in the open at the start – or even before the start – so you know what you are facing. It can be an uphill battle to prove that a will is invalid, or that the estate should be divided up differently, and even in winning, you may not end up in any better position.

On the other hand, we take care to advise our clients and prospective clients honestly as to the strength of their claim, and the likelihood of success. As a result, we succeed in most of the claims that we take on.

If you’d like to talk more about the will dispute you are considering, we’d be glad to listen. We offer a free claim assessment, so get in touch!

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a conference room is where you may spend the day if you engage in mediation to resolve your will dispute

The benefits of Mediation in a will dispute

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In a series of blogs in which we look at mediation and the role it plays in resolving a will dispute and other contentious probate matters, here we consider the benefits of mediation.

What is mediation?

Mediation is a form of dispute resolution which involves negotiation between the parties, managed by an independent mediator. Mediation will take place on a particular day, and in a specified location. The person bringing the claim, and all the other parties involved, attend with their legal advisers. Although there may be an initial ‘joint meeting’ with everyone in the same room, for much of the mediation, the parties involved in the will dispute will be in separate rooms, with the mediator moving between rooms to communicate and discuss what is on the cards.

What happens during the mediation remains confidential. If the mediation does not result in an agreement and the case does go to a court hearing, nobody can refer to something that was said during the mediation.

The rules governing contentious probate disputes require the parties involved to consider and engage in some form of dispute resolution before a court hearing can go ahead. If you unreasonably refuse to co-operate, you can face stiff penalties from the courts, usually involving the payment of costs.

Mediation puts the individuals involved in the claim back in control

If you’ve ever had the experience of taking part in a full court hearing, you’ll perhaps appreciate that the individuals bringing or defending the claim can often feel as if they are playing a ‘walk on’ part in someone else’s drama. The whole scene is set up in a way that the lawyers and the judge play the major part, while you will only be able to speak when giving evidence, and being questioned.

Although you are legally represented during a mediation, there is none of the formality of a court room, and you are free to speak directly to the mediator should you wish to do so. Of course, if you don’t feel comfortable with this, your lawyer will be there to handle the negotiations, but this is up to you. Another way in which the parties are more in control is that the outcome will be agreed between them, rather than imposed by a judge. This, in itself, has lots of advantages, which we’ll look at next.

Mediation offers flexibility

If your dispute reaches a court hearing which runs to its conclusion, the judge will have very limited options. Your claim (or the claim you are defending) will either succeed or not, and the judge will be obliged to follow the outcome of that decision. In practical terms, this could mean that a will is held to be invalid in its entirety (a judge can’t decide that only part of a will is invalid) with all the consequences that follow from this.

A mediation is a far freer forum, unconstrained by the conventions of a court hearing and the restrictive options that a judge has open to him having heard evidence and legal submissions. No one ‘makes a decision’ in a mediation; there is no judgment. Instead, the parties involved negotiate to reach a conclusion to the matter, and this can include far more flexible and creative solutions than are open to a judge.

Mediation can result in creative and tax efficient settlements

Following on from the point about flexibility, a judge is limited in his options and can’t take into account things like potential tax consequences of a decision – this could mean that although you succeed in your claim, you may incur other disadvantages as a result.

The flexibility that mediation allows means that all these additional possibilities and consequences can be thrown into the mix as part of the negotiation, with the aim of reaching a far more practical solution to the issues than could be achieved in a court room. Settlements reached through mediation can include acknowledgements by one or both of the parties in relation to the situation that they found themselves in.

Mediation offers a significantly more cost-effective option than litigation

No one can enter into a legal dispute without giving a thought to costs. For most people, it will be a very significant thought – because legal costs can be extremely high. If a will dispute reaches a court room, the costs of the exercise can well reach 6 figures. Even if you have a ‘no win no fee’ arrangement with your legal team, and you win your claim, you won’t be able to recover all your costs from the losing party, and the legal costs can eat into any sums of money you have secured. If you lose your claim, you may not have to pay your solicitor’s fees but there will be other costs that you will have to pay, such as court fees. You may also have to pay the costs of the other side.

Mediation offers a far more cost-effective solution. That isn’t to say there will be no costs involved, but they will almost always be significantly less than the costs involved in proceeding to a court hearing, which has no certainty, and quite a number of risks involved.

Mediation can be a less stressful solution

Sadly, the reason you are contemplating this kind of legal action is because someone close to you has passed away. A court hearing can add even more stress to what is already a stressful situation.

Mediation is a much less stressful approach which allows you to be heard, but in a more comfortable environment than a court room. It will almost certainly involve compromise to reach an agreement. However, you will achieve a negotiated settlement that may be more beneficial to your situation than a court decision will be. Further, you will get there far more quickly and less expensively than going all the way to court, allowing you to put the matter behind you.

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A no win no fee agreement means you won't have t scrape together your loose change to fight a will dispute

The costs of challenging a will

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You may well have read stories in the press about high profile will disputes and the legal costs that are involved. While it’s true that bringing a challenge to a will is unlikely to come cheap, there are a number of options open to you which means you don’t have to find the money up front, and will only have to pay costs if you succeed in your claim. In this blog, we look in more detail at ‘no win no fee’.

What are the costs of challenging a will?

Bringing a challenge to a will inevitably involves costs. It’s an exceedingly complex area of law. While there is no requirement to use a solicitor, an expert in this area of law will be able to advise you on the strength of your case, the preparation of evidence and negotiate to see if a settlement can be reached without going to court. If a will dispute cannot be resolved and ends up before a judge, there are further costs preparing for the hearing, perhaps instructing a barrister, and the time spent in court at the hearing. The idea of all the costs may make you think twice before pursuing the claim. Community Legal Service funding (formerly legal aid) is rarely available for this kind of legal action, however great the injustice.

So if you don’t think you can afford a claim, what are the options?

Bringing a claim without legal advice

As we’ve already mentioned, there is no requirement to use a solicitor to bring your claim. You may be able to get some support from organisations such as Citizens Advice, but it is unlikely that you will be able to obtain comprehensive legal advice throughout the claim unless you engage an experienced solicitor who specialises in will disputes. Contesting a will involves complicated legal concepts, and procedures – and if you don’t follow the processes correctly, you may find you cannot bring your claim. This is regardless of how strong your claim might be. It’s also worth remembering that if you choose not to use a solicitor, you may find the pressure of working on the claim yourself without support takes over and has a detrimental impact on other areas of your life. You will also incur some costs such as the costs of registering the claim with the court.

No win no fee

In some cases, you may find you have legal expenses insurance if your home insurance policy (or another insurance policy) includes this option. If this is the case, your legal expenses will be covered by your insurance company. Another, increasingly common way of funding legal action is ‘no win no fee’. This doesn’t just apply in will dispute claims. The idea is that you will only have to pay your legal costs if you win your claim. Depending on the type of dispute, the costs may be recovered from the other side, from the estate of the testator or out of the monies you had been successful in claiming. However, this is still a better position than having to find the money to bring the claim up front.

No win no fee from Will Claim

In practice, our experience in this specialist area of law means that we will always assess any will dispute carefully at the outset, and as the claim progresses – for example as more evidence becomes available. The reality is that most of these types of claim are settled without the need for a court hearing or simply not pursued. Costs will be dealt with as part of settlement. If the case does go to court and you are unsuccessful, quite simply, we don’t get paid! Using no win no fee gives you the reassurance of being able to bring a claim and know that you will not face a huge legal bill at the end of it.

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rolling dice and weighing up the risks of contesting a will

Contesting a will – what are the risks?

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You may feel aggrieved by your inheritance, or feel that your loved one’s will should not stand – but what are the risks of contesting a will?

Your loved one has died, and taking legal action may be the last thing you want to think about, but if you feel that the will doesn’t reflect the true intentions of the deceased, or that you will struggle financially in the future as the result of the way the estate is to be divided, this is a step you may have to take. Many people look at the likely positive outcome that may come from contesting a will, but taking this kind of legal action does have its risks.

  1. You are not close enough to ‘have an interest’ in the estate

The law makes it clear that only people who have an interest in the estate can challenge a will. And until recently, this was thought to be people who would benefit under the intestacy rules, had the deceased died without leaving a valid will. As we recently reported, the case of Randall v Randall suggests that there may be scope for widening the group of people who can bring a challenge to the validity of a will.

  1. Not enough evidence to succeed

Challenging the validity of a will is quite a hard case to put together. In most cases, provided the will is signed and witnessed, there is a presumption that the will is valid. Coupled with this, the person who knows best what he or she was thinking when they made the will, who can give evidence about any pressure they were subjected to at the time the will was made is, to put it plainly, no longer with us. If you are seeking to challenge a will, you will need to construct a case using evidence that might be available: documents and witness statements from people who are prepared to support your claim. Although there is no time limit preventing you from bringing a claim, the longer you leave it, the harder it will be to track down this evidence.

  1. You may end up in a worse position than if the will stands

Before you contest a will, it makes sense to work out what the conclusions will be if you succeed. If you are challenging the validity of a will, and successfully persuade the court that the will should be set aside, how will the estate be divided up? Is there an earlier, valid, will that can cover the estate? Or will the intestacy rules apply? You need to consider carefully what the consequences of your challenge will be – you could end up worse off!

  1. Expensive legal fees

As with any legal action, bringing a claim disputing the validity of a will can be expensive, involving solicitors’ costs and court fees. There is no provision for Community Legal Service funding (what used to be known as legal aid), and many insurance policies which cover legal fees exclude these kinds of claim. If this is the case, you will be looking at funding your claim yourself. An alternative is to enter into a ‘no win no fee’ arrangement with your solicitor. These arrangements mean that you will only pay legal costs if you win your claim. Further, those costs can, in most cases, be recovered from the other side, making this a good option if you are considering contesting a will.

  1. Paying the other side’s costs

If you lose your case, you may end up having to pay the costs of the other side. If you bring a claim that is ‘mischievous’ or in circumstances in which you don’t have good evidence to support your claim, you may end up facing a large legal bill – a situation recently highlighted in the case of Elliot v Simmonds. If you are thinking about challenging a will, it’s always worth taking legal advice from a specialist firm of solicitors about the strength of your claim and the potential costs consequences of taking legal action.

There are lots of factors, and risks, that need to be weighed up before embarking on legal proceedings to contest a will, and it’s undoubtedly a stressful step to take. We can discuss how you will fund your claim, and guide you through the legal maze to help you identify whether you have a good case. We’ll also talk you through what will be involved and the evidence that will be needed to secure a good outcome. Give us a call on 020 3322 5103 to find out how we can help you.

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Intestacy – can I challenge the rules?

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We talk a lot about how to challenge a will, but what happens if someone dies without making a will? In this blog, we look at the intestacy rules, how they work in practice, and your options if you aren’t included.

A number of high profile personalities have passed away recently without leaving a valid will, meaning that the intestacy provisions have received quite a lot of publicity. Rik Mayall, the actor, died suddenly and unexpectedly. Perhaps he was intending to make a will, perhaps not, but the result is that his family will receive his estate in accordance with a set of rules that were updated in 2014. So what are the intestacy rules – and can they be challenged?

Dying ‘intestate’ – what does it mean?

As we’ve already mentioned, dying intestate means that there is no will – or no valid will – which sets out the wishes of the deceased regarding how he (or she) wishes his property to be divided up on his death. In these circumstances, a set of rules, commonly known as ‘the intestacy rules’ will apply, dividing the property up in a set order, depending on which of the deceased’s relatives are still alive. While there may be cases where the intestacy rules apply with no problems, in many other situations, the rigid application of the rules can cause difficulties.

How do the Intestacy rules apply?

When someone dies intestate in England or Wales, the estate of the deceased is divided according to a strict order. There’s a helpful flow chart on the government’s website,which takes you through the steps but essentially, the order is as follows:

  1. Spouse/civil partner.
    • How much you will receive as a spouse/civil partner depends on whether there are any surviving children, and the value of the estate.
    • Where the estate is worth more than £250,000, the spouse received personal possessions plus the first £250,000.
    • If worth less than £250,000, the spouse receives everything.
  2. Children.
    • Depending on the value of the estates and whether the deceased is survived by a spouse/civil partner, children are next in line.
    • Children receive an equal share of anything over £250,000 if there is a spouse, or an equal share of the entire estate if there is no surviving spouse.
    • ‘Children’ includes children from all the deceased’s relationships, and any child that has been legally adopted.
    • Children inherit when they reach the age of 18 or if they marry or enter a civil partnership before the age of 18
  3. Grandchildren/Great-grandchildren.
    • Where a child of the deceased who would have inherited under the intestacy rules is already dead, their children (the deceased’s grandchildren).
    • This flows down to apply to great grandchildren if there is no one else to inherit
  4. Other relatives
    • If no spouse or children survive the deceased, the estate is split between surviving relatives, again according to a predetermined order
    • The order gives primacy to surviving parents, after which siblings (or their children) will inherit, followed by any half siblings, your grandparents, your aunts and uncles and finally any half aunts and uncles.
    • If you die without a will and none of these relatives survive you to receive your property, the estate will pass to the Crown.

What don’t the intestacy rules cover?

So far, so clear, but what happens if the intestacy rules mean you are left with nothing in what seems to be unfair circumstances. For example, a common law partner where the relationship has not been formalised, will receive nothing. There is no provision for step-children (unless you have adopted them), regardless of how long you have looked after them or how much financial support you provide them. You may have known that the deceased wanted to make provision for someone who cared for them, for a good friend, a charity. He or she might even have wanted to make provision for the care of a pet which survived them. None of these intentions will be fulfilled under the intestacy rules.

Can I challenge the intestacy rules?

Although there is no ‘challenge’ to the intestacy rules in the same way that you can challenge a will, someone who feels that the deceased might have left them provision had they made a will can bring a claim under the Inheritance (Provision for Family and Dependants) Act 1975 for financial provision. A claim under the Inheritance Act could be a possibility for a common law spouse who receives nothing in favour of the deceased’s children. It could also help someone who was treated as a child of the deceased (for example a step child) but there was no legal adoption. Finally, someone partly or wholly dependant on the deceased immediately before the death, may bring a claim for financial provision. Strict time limits apply – a claim must be brought within 6 months of the ‘Letters of Administration’ (which allows the distribution of an estate under the intestacy rules) being granted.

Agreeing to vary the Intestacy rules

Another way of inheriting when the intestacy rules don’t cover you is if those people who are entitled to a share of the estate agree to a different division of the estate.  In this case, the beneficiaries of the estate can apply for a deed of variation, or a deed of family arrangement to change the way the estate is divided to include other people – for example step children who weren’t adopted, or a common law partner. Such an application needs to be brought within 2 years of the death.

Need more information?

If you’re worried about your position following the death of a loved one, and no will seems to have been made, taking some legal advice may help you work out what to do. We can talk to you about your options and determine the best way forward given your circumstances. We can usually act on a ‘no win no fee’ basis too, which means the costs of any legal action may not be as high as you thought.

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Contesting Wills – the Practicalities

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You may feel aggrieved by the provisions of a will – but what are the practicalities of contesting wills in the UK?

In the wake of the death of a relative, a close friend, there are many things to contend with, not least your grief. Notwithstanding how difficult the weeks and months that follow, there are many practical steps that need to be taken when someone close to you has died. Disputing the will may not be at the top of your list, but in certain circumstances, it may become apparent that this is necessary. Here we take some time to look at the practicalities of contesting wills.

Do you have ‘an interest in the will’?

If a will is to be contested, there are only a certain number of people who will be able to contest a will. These are broadly defined as people with ‘an interest in the will’ and usually correspond with the people who would inherit if the testator (the person who made the will) had died without making a will at all. The intestacy rules include the testator’s spouse, and children, his or her parents, and then more remote blood or adoptive relatives. More recently, the case of Randall v Randall found that the ex-husband of the testator’s daughter had sufficient interest to challenge the will.

Can you afford to challenge a will?

You may be concerned that taking legal action to seek justice may be too expensive for you to continue. While legal proceedings can be costly, we are usually able to offer our services on a no win no fee basis which means that you will have nothing to pay if your claim does not succeed. If your claim does succeed, we will seek to recover your legal costs from the estate or from the person who opposed your claim.

What will you gain from contesting a will?

If you bring a claim to contest a will, you will be challenging the validity of the will in its entirety. If you win your claim, the end result is that the will is set aside, and the estate concerned will be distributed according to the most recent previous will that was made – or, if there is then no will, according to the intestacy rules. This may mean that you are worse off than if the will stands. It’s worth taking legal advice about what the position will be should your claim succeed.

Have you left it too late to contest a will?

Depending on the type of claim you are thinking of bringing, certain time limits apply.  A claim for maintenance under the Inheritance (Provision for Families and Dependants) Act 1975 has to be brought within 6 months of the grant of probate. It may, in some cases, be possible to extend the time limits, but this is not something you can rely on. Other claims, challenging the validity of the will don’t have a fixed time limit. However, the longer you leave a claim, the less likely it will be that you will be able to gather sufficient meaningful evidence to construct a strong case. In addition, the estate may have been distributed and the assets dispersed. For these reasons, it is always important to act without delay.

Do you have sufficient evidence to contest a will?

You may have a strong suspicion that all is not as it might seem as regards the will concerned, but without any evidence, you will find it very hard to succeed in your claim. In many cases, there is a ‘presumption’ that the will is valid, so there needs to be strong evidence to defeat this presumption and have the will set aside. We looked at the evidence you need to contest a will in this recent blog.

Taking the decision to contest a will is one that must be made carefully, looking at all the factors in play, and with the benefit of sound legal advice. If you are considering your position following the death of a loved one, we can talk through the issues with you, help you understand whether you may have a claim, and how likely it is to succeed.

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Left without an Inheritance? What can you do?

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If you’ve been left without an inheritance, what options do you have to challenge a will?

There have been a number of high profile examples of people challenging a will because they feel they feel cheated of their inheritance. Not only that, a number of high profile figures have announced that they will not be leaving an inheritance for their children: Anita Roddick of the Body Shop, cook and writer Nigella Lawson, Sir Elton John, Andrew Lloyd Webber have all publicly expressed their intention that their children will need to stand on their own two feet and not rely on an inheritance. Admittedly, dig deeper, and it doesn’t appear that their offspring will be left with nothing under the terms of their high profile parents’ wills, but should that be the case, or should they feel they haven’t been left ‘enough’, what can they do?

Challenging a will

If you feel that you have missed out on an inheritance, that you should have been left something in a particular will – may be your parents, a grandparent, or someone who treated you like a child or grandchild, one option open to you is to challenge the will on the grounds that it is somehow invalid and does not accurately represent the wishes and intentions of the person who made the will (the ‘testator’).

If you challenge a will in this way and succeed, the result will be that the will is declared invalid, and the inheritance will then be distributed according to the most recent will that exists before the invalid one, or according to the rules of intestacy if there is no other will. It’s always important to establish what would be the result if you are successful when you challenge a will – if the result would be that you would be worse off than under the will you are considering disputing, then a challenge would be counterproductive.

There are very specific grounds on which you can challenge a will, including:

  • Did the testator have ‘mental capacity’ to make the will?
  • Did the testator ‘know and approve’ the contents of the will?
  • Was the testator placed under ‘undue influence’ to make the will?
  • Was the will validly signed and witnessed?

You will need to take specific advice about the basis for your challenge, and what the outcome could be.

Claiming Maintenance under the Inheritance (Provision for Family and Dependants) Act 1975

The Inheritance (Provision for Family and Dependants) Act 1975 (the Inheritance Act) makes it possible for someone who feels they haven’t been left an inheritance but should have received something, or who has been left an inheritance but doesn’t feel they have been left enough, to make a claim for ‘maintenance’. Crucially, this type of claim does not involve a challenge to the validity of the will itself, it merely examines how the testator’s estate has been distributed under the will, and if necessary makes changes to that distribution.

The Inheritance Act sets out who can bring a claim for maintenance, and the claims can only be for ‘reasonable financial provision’. Essentially, there is also a balancing act to be carried out looking at the needs of the person bringing the claim and those people named as beneficiaries in the will. You can’t take action before the testator has died – so should the children of Lawson, Lloyd-Webber et al feel aggrieved at their parents’ stance the only action they can take at this stage is to retain papers and any other evidence about your financial position that might be useful following the death of their parent. Indeed, we would hope that these provisions have already been discussed with the children concerned!

When looking at ‘reasonable financial provision’, the courts will look at a number of factors, including:

  • The financial resources and needs the applicant – and any other applicant – has or might have in the future
  • The financial resources and needs of any beneficiary of the estate under the will
  • The obligations the testator had towards any applicant under the Inheritance Act, and towards any beneficiary
  • The size of the estate
  • Any disabilities affecting the applicant
  • ‘Any other relevant circumstances’

Claims under the Inheritance Act must be brought within 6 months of the grant of probate, and although this time limit can be extended in exceptional circumstances, it is usually strictly observed, so taking advice and action early is important.

In either case, whether you want to challenge the validity of a will, or bring a claim for maintenance under the Inheritance Act, it is important to take legal advice early on. We can provide a free assessment of your claim, and if you decide to proceed, we can handle most such claims under a ‘no win no fee’ arrangement. Get in touch to find out more: call 020 3322 5103 or use our online contact form.

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