29 January 2018
I’ve Been Left Out of a Loved One’s Will – is There Anything I Can do?
It’s always sad when a loved one passes away. However, when there are disputes being made over the deceased’s will, it can make the grieving process even more distressing.
I recently read an article in the news about three brothers who are at war over their late mother’s £1.8million estate.
Rachel Heath left her sons Jeremy, Timothy and Dominic equal shares of her fortune when she died in 2015, aged 93.
However, Timothy is now fighting for a larger share of the money arguing he was an “unpaid carer” for their mother for years while his brothers “took none of the burden”.
Lawyer Timothy, 62, never left home and cared for their mother for the last eight years of her life, the court was told.
He claims doctors Jeremy and Dominic did not help look after Mrs Heath, who had dementia in later life. But his brothers say he is “overegging the pudding” and should get out of the house so the estate can be fairly shared out.
The case raises serious questions for families who may find themselves in a similar situation. I decided to explore some of the issues in greater detail.
What happens if I’m not happy with what I’ve received from a will?
It’s always best to seek some form of mediation whether informal – just speaking to your family members, or formal – sitting down with a mediator.
Going to court can be a lengthy and costly process, so it is best ti sit down with your family to try and resolve the issue in the first instance.
Should mediation not be possible, then the next step would be to seek legal advice.
A specialist lawyer will be able to see if you qualify as one of the categories of claimants under the Inheritance (Provision for Family and Dependents) Act 1975 (IPFDA), which will significantly help your claim. People who fall into this group include spouses/ civil partners, former spouses or civil partners of the deceased who have not remarried or entered into a further civil partnership, living with the deceased for at least two years prior to their death, the deceased child, treated as the deceased child such as adopted, fostered or step-child or someone who was being financially supported by the deceased.
How can I stop someone contesting my will?
Unfortunately, you cannot stop someone from contesting your will. However, you can make it harder for the person contesting to be successful in their claim, by making your will as water tight as possible. You can do this by including an explanation either in the Will or by way of a separate statement confirming why you have made the provisions that you have in your Will.
It is always best, when taking initial instructions from your client, to ask whether there is anyone that may be expecting to receive something from the Will who isn’t or that may be expecting more than what they are being gifted. If the answer is yes, then it is strongly advised to include a clause in the will explaining reasons as to why this person has been left out of the will. If the client fears that their Will may be contested after their death, then we can draft a IPFDA statement that can be presented in court, should the Will be contested, outlining the reasons why the said person has been left out of the Will or isn’t receiving as much as they may have expected.
It’s really important to keep your will up to date – if some time has passed or your family or financial circumstances change, then this is a good time to review your will (or strongly consider making a Will if you do not have one). Even if you’re very aware of this, a relative may not be, so it’s worth reminding them. Some find this a difficult subject to bring up but it’s so important (whether it’s for asset protection, managing inheritance tax or planning for the future) to make your loved ones aware and remind them to update or make a Will.
For example, if your parents have been separated for many years but never divorced, if one of your parents die without making a Will (intestate) then the majority of their estate (if not all) would go to their estranged surviving spouse.
I’ve been caring for my sick mother, my siblings do nothing to help. Will I get more from her will automatically?
No, your mother would have to had expressed wishes to leave you more than your other family members in her will.
The Heath family case proves that unless a person changes their will then it’s tricky for somebody contesting the will to prove they have been unfairly treated. This case poses so many questions. For example, Mrs Heath had two independent carers who were paid £45,000 a year. Who paid for the professional carers? Did the other brothers contribute to the care financially at all? How much help did Timothy provide? Did he pay rent while living in the family home?
If you’re in a situation where you’re providing all the care for a family member and unable to work and earn a living because of it, speak to the rest of your family. Try to come to some agreement.
Are you still able to make or alter a will if your memory is failing?
The short answer is maybe. There is a difference between mental capacity and testamentary capacity. Even though your short-term memory may be deteriorating, this does not mean that you have not decided who you would like to benefit from your Will.
There’s a broad spectrum with Dementia and Alzheimer’s. In the early stages, people may be at a place where they are beginning to forget things but can still decide who is to benefit from their estate. If unsure as to whether a client or family member has sufficient testamentary capacity to make a will, then it is always best to seek medical opinion. If the person was deemed unable to make a will or make changes to it, a statutory will can be made by way of an application to the court by an attorney or deputy. The court will always consider what is in the best interest of the patient and who will be affected by the statutory will being made.
For more information regarding statutory wills, please contact our court of protection department.