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Use a solicitor or regulated lawyer from a family firm to make your Will

We have discussed in previous blogs the Court’s power to make an award under the Inheritance Act where someone has not been provided for, either in a Will or under the rules of intestacy. Indeed, these limitation on testamentary freedom may leave some wondering what the point of making a Will actually is. However, despite the limitations that the Court’s powers under the Inheritance Act place on the principle of testamentary freedom, a Will is still necessary. Although there are …

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Cohabitees – planning for the future

Failure to provide adequately for a cohabitee may result in the necessity of an Inheritance Act claim, given the lack of provision under intestacy rules. Cohabitees should therefore consider making provision for each other. The arrangements should be appropriate to the couple’s financial circumstances and do not necessarily have to be financial, per Lewis v Warner.[1] In addition to making a Will, there are other areas to consider. First, they may also benefit from estate planning as they do not …

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Making a Will following separation or divorce

Divorce It is typical for couples who have divorced or dissolved their civil partnership to use a consent order to record their financial arrangements. Typically, these will seek to create a ‘clean break’. Although there is no duty to grant one and indeed one will not be granted if it is inappropriate,[1] there is a ‘statutory steer’ towards such arrangement.[2] Consequently agreements often include a clause that neither party can claim against the other’s estate in the future.[3] Many solicitors …

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Why you MUST keep your Will up to date

Lawyers typically recommend that a Will is revisited at least every three years but they need to be proactive in asking clients to update. Wills should also take into account changes to the family structure, assets and matters such as marriage (which revokes a Will unless it was made ‘in contemplation’[1]), divorce (which does not revoke a Will but can often leave the testator intestate or partially intestate[2]), separation, new family members, deaths in the family, cohabitees and changes in …

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Taking a broader approach to Will writing

The increase in probate claims and in particular, the uncertainty of Inheritance Act claims outcomes mean that firms like our own which offer will-writing services must keep up to date with the latest contested probate cases and adapt their advice and practices accordingly. To take one example, it is inadvisable (and contrary to Law Society Guidance)[1] for beneficiaries to be present or involved in the will-writing process; where they are, contested probate lawyers will know that this assists a claim …

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So many claims: is making a Will still necessary?

In our last few posts, we’ve looked in detail at Inheritance Act claims which are just one type of claim that may be made against an estate. With a rapidly growing number of disputes, you can be forgiven for wondering if it’s even worth making a Will at all. Do we really have testamentary freedom any more – i.e. the ability to leave our assets to who we choose? Despite the limitations that the Court’s powers under the Inheritance Act …

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Judicial latitude in Inheritance Act claims

In our recent post ‘Making an Inheritance Act claim‘ we explained the two step process that a Court will take when assessing a claim – namely, (1) The Court must first ask the threshold question: does the estate make reasonable financial provision for the applicant? and this is decided taking into account all factors within Section 3 of the Inheritance Act. (2) Only if the Court is so satisfied that the threshold question has been met can it consider exercising its …

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A growing number of Will claims

A claim made against an estate is referred to in practice as a contested probate claim. Lawyers are seeing a growing number of such enquiries and an increasingly litigious attitude – one in four people now say they would challenge a will if they were unhappy with the division of assets[1]. The bulk of claims fall into two categories: adult children who have been disinherited, and cohabitees who are, as noted, inadequately provided for by the law. Of note, a …

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Making a claim under the Inheritance Act 1975

Whether a person dies having made a Will or intestate, a claim can be made against their estate by certain people under the Inheritance (Provision for Family and Dependants) Act 1975 as amended[1]. Claims are restricted to close family members and dependants. Paradoxically, the pool of prospective claimants is wider than those who might apply for provision during the testator’s lifetime.[2] These include: 1(1)(a) the deceased’s spouse or civil partner (including polygamous spouses[3]); 1(1)(b) the deceased’s former spouse or former …

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Forced heirship

In many civil law jurisdictions, certain family members have an automatic entitlement to a portion of the estate under principles of forced heirship. For example, in Scotland, spouses and civil partners, children – and where children die before a parent, grandchildren – have ‘legal rights’ that triumph any Will.[1] Family members who benefit from such rights can choose to ‘go with the Will’ or claim under the forced heirship rules, depending on which is more favourable. In Scotland these rights …

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