The rise in real property prices in the nineties and noughties means that many estates are of significant value with the testator’s own home the main asset.

The value of the estate is one of the factors that must be considered by the Court in any application under the Inheritance Act. A larger estate might also be a greater incentive for a claim to be made for reasonable financial provision under the Act. It is perhaps not surprising that testators have tried to ensure that their main asset passes in accordance with their intention by disposing of their property during their lifetime believing that it is removed from their estate and out of reach of the court in an Inheritance Act claim. But…

If the deceased has disposed of property less than six years before death and with the intention of defeating an application for financial provision under the Inheritance Act and full financial consideration was not given for the property then the Court can make an order that the recipient must provide that property or such other property or sum to that value. So selling the property after it is received does not deprive the Court of the assets from which to make reasonable financial provision.

So the house is the testator’s and arguably it (or its value) remains so even if he/she has tried to get rid of it in an attempt to defeat a claim under the Act. 

Take specialist legal advice when estate planning and when considering or making a claim under the Inheritance Act.