Disputes After Death
Disputes after death can cause stress and conflict for bereaved families.
If you are concerned that your estate and wishes may cause disputes between your loved ones after you pass away, you should seek legal advice. A solicitor can advise you on how to put plans in place to reduce the risk of disputes after you die.
Nonetheless, some disputes can arise unexpectedly after someone dies. For example, an estranged relative could make a claim on the estate, beneficiaries could disagree over who inherits a prized possession, or an executor could be questioned for acting in breach of their duties.
In this article, Mischa McKevitt summarises some common types of disputes after death, when they arise and how they can be resolved legally.
If you are, or feel you may become, involved in a dispute after the death of a loved one, we strongly recommend you seek legal advice. Please contact us on 01707 329333 or email firstname.lastname@example.org with a summary of your situation so that we can advise you of the best way forward.
Table of Contents
What are the common types of disputes after death?
Generally, the most common disputes after death that can occur are Will disputes, disputes between beneficiaries and disputes between Executors. Examples include:
- Will disputes such as the legal validity of a Will.
- Whether the deceased had the necessary mental capacity to create a Will.
- Allegations of forgery of a Will.
- Whether the deceased was unduly influenced.
- An individual being cut out of a Will.
- Disputes between beneficiaries, such as a beneficiary not being satisfied with their inheritance under a Will.
- An unmarried partner not receiving any benefit from an estate where the deceased died intestate.
- Family disagreements about a deceased’s personal items.
- Disputes between Executors, such as an Executor and/or Trustee of an estate acting inappropriately (in breach of their duties).
What happens to a person’s assets and liabilities on death?
Firstly, you must ascertain whether the deceased died leaving a valid Will. Secondly, you must ascertain whether you have the deceased’s last Will.
If the deceased died leaving a valid Will, the Will sets out (a) who can administer the estate (“Executors”) and (b) who benefits under the estate. In summary, the Will determines what happens to a person’s assets and liabilities on death.
What is a valid Will?
- A Will must be made voluntarily.
- A Will must be made by someone with the mental capacity to do so.
- A Will must be made in writing.
- A will must be signed by the testator in the presence of 2 witnesses.
- The witnesses must sign the Will in the testator’s presence.
- A Will should be dated but an undated Will is not automatically invalid.
If any of these elements are absent, this may render the Will invalid and lead to a dispute after the testator’s death.
It is a common misconception that a Will can be made “bullet-proof”. It is not possible to categorically prevent disputes arising after your death. However, it is possible to reduce the likelihood of disputes arising after your death. Please contact us on 01707 329333 or email email@example.com to discuss making a valid Will that sets out your wishes as far as possible.
Dying without a Will
If the deceased died without creating a Will, then they have died ‘intestate’. This simply means that they died without a Will.
If a person dies without a Will, the rules of intestacy set out what should happen to their estate. The deceased’s estate will be divided between certain relatives as set out by law. The individuals who can apply to administer the estate (“Administrators”) are also set out by law.
Unmarried couples under intestacy rules
The intestacy rules do not make any provision for unmarried couples (people living together). Therefore, if you have a partner or someone you live with that you want to take care of after your death, you must make a Will.
What grounds are there for contesting a Will?
A Will can be contested under several grounds.
- Did the testator have the mental capacity to make a Will?
- Was the testator unduly influenced by someone to write the Will in a way that may not have been their genuine intention?
- Did the testator lack the knowledge to properly understand the significance and complexity of the Will they were writing?
- Is the Will fraudulent and not genuinely produced by the testator?
- Did a clerical error mean that the testator’s intentions were not accurately understood or recorded in the Will?
Did the testator have mental capacity to make a Will?
Alleging that the person who made the Will (the testator) did not have mental capacity to make a Will is a common dispute that arises.
It is important to understand that different legal tests are applied to determine whether an individual has mental capacity. This depends on what act or decision the individual is carrying out or making.
Banks v Goodfellow test
To determine testamentary capacity (whether a testator has mental capacity to make a Will), the Banks v Goodfellow test is applied. This test was established over 150 years ago but remains good law. To pass the test, the testator must:
- understand the nature of the Will and its effect;
- have some understanding of the extent of the property of which they are disposing under the will;
- are aware of the people for whom they would usually be expected to provide; and
- are free from any delusion of the mind that would affect their dispositions to those people.
If a person did not have mental capacity to make a Will at the time of doing so, then the Will is invalid.
It is important to understand that mental capacity is a complex concept. An individual may have mental capacity to make a Will but may not have mental capacity to do something else. If a person has some diagnosis or impairment such as dementia, this does not automatically mean that they lack capacity to make a Will. Mental capacity can fluctuate and is often date, time, and decision specific.
Mental Capacity Assessment
If there is any question as to whether a person has mental capacity to make a Will, it is best practise and advisable for a mental capacity assessment to be carried out before they make the Will. This assessment should be conducted by a qualified and suitable professional, who can prepare a report of their findings. Your Solicitor can recommend a reputable professional to you.
The professional will assess whether the testator has mental capacity to make a Will in accordance with the Banks v Goodfellow test (above).
This report can be produced and relied upon as evidence of the testator’s capacity, if the testator’s Will is challenged after their death.
It is advisable that you discuss any concerns with your Solicitor. It is best to address and deal with any potential mental capacity concerns at the time of making your Will. These concerns or issues can then be dealt with insofar as possible at that time. This will reduce the likelihood of viable disputes arising after your death.
Inheritance disputes after death
In England and Wales, there is testamentary freedom. In a nutshell, this means that you have the freedom to leave your estate to whomever you wish. There is no legal obligation to leave your estate to specific individuals. Therefore, a family member can be excluded from a Will if this is your wish. This is not the case worldwide and inheritance rules depend upon the jurisdiction.
However, disputes may arise, for example, where an individual has been left out of a Will or does not benefit under the intestacy rules (where there is no Will). These disputes after death are typically known as inheritance claims.
The crux of the claim is this: the deceased’s estate does not make reasonable financial provision for them.
An individual may argue that a Will or the intestacy rules either (a) make no provision for them whatsoever or (b) does not make sufficient provision for them.
Claims under the Inheritance (Provision for Family and Dependants) Act 1975
Certain individuals may make a claim against an estate under the 1975 Act. These include:
- The deceased’s spouse or civil partner;
- The deceased’s former spouse or civil partner who has not remarried/formed another civil partnership;
- The deceased’s child;
- A person the deceased treated as a child;
- A person who had been living with the deceased for a period of at least 2 years immediately prior to their death;
- Any person who was being maintained by the deceased at the time of their death.
If the Court considers reasonable financial provision has not been made for an individual, it will consider various factors when determining whether to rectify this.
These factors include:
- the financial resources and needs of the individual and the beneficiaries of the estate
- any obligations or responsibilities the deceased had towards the individual and the beneficiaries of the estate
- the size and nature of the estate.
If the Court agrees that reasonable financial provision was not made for the individual, it has the power to make various orders. This may include payment of a lump sum or the transfer of property to that individual.
How long do you have to bring a 1975 Act claim against an estate?
(The 6 month rule for Probate)
A claim must be sent to the Court within 6 months from the date of the Grant of Representation (whether that be a Grant of Probate or Grant of Letters of Administration).
This means that it is important to know when the Grant of Representation has been issued by the Probate Registry. It is possible to place a ‘standing search’ at the Probate Registry for a small fee so that you are notified when a Grant is issued.
You should note that this time requirement means that the application to the Court must be made within the 6 months. It is not sufficient for you to have instructed a Solicitor or have written a letter of claim.
The Court may (in their discretion) grant a claim out of time. However, it is likely that good reason will need to be established for any claim considered “out of time”.
Once the claim is made to the Court, the Court will issue it. It is very important to note that the Claimant has a further period of time to serve the issued claim on the Defendants. Therefore, it is not always safe to assume that there is no claim after 6 months have passed. Executors should obtain legal advice as to when it is safer to distribute an estate.
How do I fight for my inheritance?
It is a common subject in legal themed films and television programmes to see an individual decide to ‘fight’ for their inheritance. However, it is not always that simple. Solicitors refer to a ‘fight’ for inheritance as an Inheritance Dispute. A Solicitor will always try to work constructively to avoid any ‘fight’ or animosity in already complex family situations.
The example of “the unmarried couple”
Joan has been in a relationship with Steven for 30 years. They never got married and do not have any children. Joan took early retirement 5 years ago and Steven was planning to retire next year. Steven’s income supported them both. Steven died a year ago and never made a Will. Steven’s estate is worth approximately £500,000. His estate passes in accordance with the intestacy rules.
As Joan and Steven never married, Joan does not benefit under Steven’s estate according to the intestacy rules. She also has no standing to apply to administer Steven’s estate.
However, in accordance with the intestacy rules, Steven’s sister, who he has not seen or spoken to for 20 years, will inherit his entire estate.
Joan claims that Steven’s estate does not make reasonable financial provision for her. In fact, Steven’s estate makes no financial provision for her at all.
Joan falls within the class of people who can make a 1975 Act claim against Steven’s estate. This is because she was living with Steven for a period of at least 2 years immediately prior to his death. Joan was also being maintained by Steven at the time of his death.
Executors or Trustees Behaving Badly
Another possible cause of disputes after death is when an Executor or Trustee of an estate is alleged to be acting inappropriately or not fulfilling their duties correctly.
What is an Executor?
The Personal Representatives of an estate are either:
- Executors appointed under the deceased’s Will, or
- Administrators, who apply to administer the deceased’s estate where there is no Will.
A trust may arise by virtue of a Will or under the intestacy rules. Trustees may be the same individuals as the Executors or Administrators but may be different.
The Role of an Executor
Personal Representatives are responsible for administering the deceased’s estate. This may include:
- Proving a Will and applying for a Grant of Representation (Probate or Letters of Administration);
- Collecting in the assets in the estate;
- Paying the liabilities of the estate;
- Accounting to HMRC in respect of the Inheritance Tax position and paying any Inheritance Tax due;
- Distributing funds to beneficiaries.
Personal Representatives owe a ‘fiduciary duty’ to the beneficiaries of the estate. Basically, this means that they must always act impartially and in the best interests of the beneficiaries.
Personal Representatives have a duty to administer the estate in accordance with the law and in a timely manner. This means, in accordance with a Will, if there is one. Or, in accordance with the intestacy rules, if they apply.
Allegations may arise that the Personal Representatives of the estate are acting in breach of their duties and specifically their fiduciary duty. This is usually by acting improperly in some way. For example, this may include:
- Executors failing to administer the estate entirely;
- Executors distributing funds or assets to the wrong beneficiaries;
- Executors entering into transactions with themselves for their own benefit;
- Executors acting negligently in some way such as failing to calculate and pay the required Inheritance Tax.
What if an Executor is dishonest?
If you are a beneficiary or an interested party for an estate, you should first raise your concerns with the Executor directly or the professionals assisting in the administration of the estate.
A beneficiary is entitled to receive a statement of account for the estate (often referred to as estate accounts). This will show the assets and liabilities in the estate, as well as expenses incurred.
If you still have concerns regarding an Executor’s behaviour or actions, then you must seek legal advice. It is possible to bring legal proceedings against an Executor for breach of their duties and ensure they account for their wrongdoing. Please contact us if you require legal advice in this regard.
Can an Executor be ignored?
It is not possible for beneficiaries to ignore an Executor and simply attempt to administer the estate themselves.
Can an Executor be removed?
Executors have various options available to them if they do not wish to prove a Will. Firstly, if an Executor wishes to step down from the role, they should seek legal advice.
There are also legal steps that beneficiaries can take to seek the removal of an Executor. There must be good grounds to seek such removal. It is also possible to ask the Court to appoint another Executor, perhaps a professional. You can find out more about Crane & Staples’s professional executor service here.
The Executor’s Year
An Executor cannot be forced to distribute assets in an estate until at least one year from the date of death. This is commonly known as “the Executor’s year”. During this year, an Executor should be collecting information about the estate, contacting the relevant organisations and making the application for the Grant of Probate.
Every estate is unique. Some estates will take significantly longer to administer than others. Most estates will take longer than one year to administer if a Grant of Probate is required and/or there is Inheritance Tax to pay.
In conclusion, disputes after death can arise for many reasons. They are often complex and emotional, especially where family members, money or possessions are involved. These can be exacerbated if the deceased person did not have a Will, or if the validity of their Will is called into question.
If you are a concerned Executor, beneficiary, family member or otherwise, you should seek legal advice after your loved one’s death. A solicitor will be able to provide you with expert advice as to your position. Please contact us on 01707 329333 or email firstname.lastname@example.org for further advice about disputes after death. We look forward to hearing from you.