It’s up to you what you do with your estate – correct?

It’s up to you what you do with your estate – correct?

14:37 25 November in Blog, Walker Foster, Wills, Probate & Lasting Powers of Attorney

It is correct to say that we can all decide not to make a Will or to make a Will leaving our assets to whoever we please (after liabilities and any tax is dealt with). If you choose not to make a Will you are at the mercy of the intestacy rules and planning by using a Will helps you to get your estate to those who you want to receive. Assuming that your Will is properly executed and is not challenged (for example for lack of testamentary capacity) the law will not interfere with your decision (or your decision to not to make a Will and to take your chances with the intestacy rules) – usually!

A man with a child leaves his entire estate to a charity. His wishes are very clear and the Will is properly executed and valid. The Court can interfere and despite his express wishes, provide for the child. This power is contained in the Inheritance (Provision for Family and Dependants) Act 1975. Certain categories of people, including a child of the deceased, can apply to the Court claiming reasonable financial provision for maintenance (which can be in the form of a lump sum).

The Court will consider a number of factors set out in the Act, particularly financial matters and also conduct and ‘obligations’ that the deceased had toward the Claimant. The factors apply the same to a claim by an adult child and there is a misconception that some special ‘moral obligation’ is required for an adult child to succeed in a claim. However, an adult child of independent means might find it more difficult to persuade a Court to make provision when considering the factors set out in the Act.

There is insufficient space here to debate cases such as ‘Espinosa’ but potential parties in such claims should keep in mind that Judges’ application of the factors in cases of varying facts means that the outcome and any quantum of provision  can be difficult to predict. Sound consideration and advice is recommended before embarking upon any proceedings and appropriate consideration must be given to the costs risks and proportionality of any action and the value of mediation and other forms of dispute resolution procedure.

Maxine Heppenstall

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