Navigating inheritance rights and contesting wills
Written by helen thompson, partner, myerson solicitors
Contesting a will is a complicated matter, deeply intertwined with the concept of testamentary freedom in England and Wales. This principle, rooted in long-held tradition, grants individuals the right to distribute their estate as they see fit, without requirements to adhere to strict shares or family expectations. Yet, as family dynamics evolve, with the rise of blended families and changing relationships, the landscape of inheritance rights becomes increasingly complex.
In this blog, we delve into the rights individuals have to an inheritance, exploring the impact of shifting family structures, the treatment of spouses and cohabitees, the rights of minor children, and the importance of understanding property ownership in inheritance matters.
What rights do you have to an inheritance? – the concept of testamentary freedom in England and Wales prevails.
To answer this, it is best to take a step back to a long-held right in England and Wales: a person making a Will has the right to leave their estate to whom they choose. This is the principle of testamentary freedom, and it differs from country to country—Scotland and Ireland have very different interpretations.
Testamentary freedom means there is no requirement to leave an estate to family members in prescriptive shares, and there are no secular (state) requirements to interfere with, say, a decision to leave an estate to a charity instead of a spouse of a child.
In short, when a valid Will is made, expected rights can be met either in whole or in part, or not at all. The only strict legal right to an inheritance is where the intestacy rules apply or if a claimant can establish a dependency upon the deceased.
The impact of changing family dynamics - second and third marriages, stepchildren and blended families.
The stereotypical family unit of a man, wife, two children, and a dog has gone. We now live in a world of ever-changing family structures, with the rise of second and third marriages and ever-increasing diversity of relationships.
Some would say that the law has been slow to change to protect and help those from blended families, and the increase in inheritance claims demonstrates that this is correct.
Today, family units may comprise first, second or third marriages and civil partnerships with children and stepchildren of one or more. Not only are the families blended, but they bring with them pre-acquired assets (homes and money), and inextricably, they become blended, too.
This presents fertile ground for disputes, with firmly held beliefs, culture, and opinions all becoming a melting pot of issues. From experience, the pot will often bubble over when death and money arise. Typical claims are 75 Act claims (see below) and Will validity challenges asserting lack of financial provision, undue influence by certain family members, lack of capacity to make a Will, aims at ringfencing assets, etc.
The cultural shift has also moved from Wills being sacrosanct and untouchable to an expected right to receive more and more - people will now question what has happened and why. The effect of the cost-of-living crisis, with all its financial pressure, may also put individuals in situations where they have nothing to lose by bringing a claim.
How are spouses/civil partners treated in inheritance claims and is the law different for cohabitees? - the effect of the Inheritance (Provision for Family and Dependants) Act 1975.
Inheritance laws often treat spouses and cohabitees differently, especially in the absence of a valid Will. There are distinct differences between the rights of a spouse and those of a cohabitee with a spouse/civil partner, who have a greater degree of protection.
A spouse's rights under intestacy (when a person dies without leaving a valid Will) are (assuming the estate is large enough) to a spouse's legacy of £322,000 and half of the residue of the estate. The remaining half will depend upon whether there are surviving children.
Under the 75 Act, a spouse has the right to bring a claim if they can demonstrate that the Will of intestacy does not make reasonable financial provision for them. If they can, then the principle of the divorce cross-check will apply, and most likely, a starting point will be an equal division of the remaining assets. A spouse doesn't need to demonstrate maintenance needs.
Conversely, a cohabitee has no rights under intestacy at all. They do have the ability to bring a claim under the 75 Act, provided that they can show that they were living with the deceased as if they were a married couple or in a civil partnership for two years immediately before death. A cohabitee is only entitled to maintenance, and unlike a spouse, the award can be significantly curtailed.
The rights of minor children – what do they do when a parent dies?
If a parent or parents die, minors are generally protected by various legal provisions that aim to ensure they are protected. All differ based on individual circumstances.
In inheritance, it is necessary to look at whether:
Parents have made a Will – if so, have they appointed Guardians or have other legal arrangements been made.
Assets have been left – if so, they may need to be placed in trust if the child is a minor.
The child has a claim under the 75 Act – if Will or intestacy made no or inadequate provision, a child (through a litigation friend) can bring a claim for maintenance.
In the context of 75 Act claims, a child of the deceased would include adopted children, illegitimate children, and children in utero. The child will need to show that they have been maintained by the deceased, so often detailed financial information is needed as to the position at the time of death and anticipated future financial costs.
Property ownership in inheritance – the importance of correct title deeds - property can pass outside of a Will.
One of the main assets of an estate will be property or the deceased's interest in a property. The aspect of ownership is often overlooked and causes enormous, significant legal and emotional turmoil.
Understanding how a deceased owns property is important because:
Being named on the title deeds carries significant legal and financial weight and implications.
The concept of joint ownership and tenancy in common is often misunderstood.
Often, a property is the one and only main asset of the parties, and investment in the home could have been combined over time.
Property can easily pass outside someone's estate, and many assumptions are wrongly made.
It is crucial to understand what the title deeds show. If you are named on them, that will most likely mean that you have a legal right or interest. Occupation of property alone is not enough. In addition, being named on the title deeds can give financial security, especially if the property is jointly owned by a spouse, partner, or family member.
Ownership also enables access to loans and mortgages, which become highly relevant in death, divorce or relationship breakdown.
In summary, handling inheritance rights and contested wills requires a grasp of testamentary freedom in England and Wales, changing family dynamics, and property ownership intricacies. The emergence of blended families and varied relationships can lead to disagreements; legal differences between spouses, cohabitees, and minor children add complexity. Understanding property ownership details is also vital, as assets can bypass a will.
To navigate inheritance matters effectively, it's essential to comprehend legal frameworks, family dynamics, and property rights – Myerson Solicitors is here to help!
Helen is Head of Probate Litigation at Myerson Solicitors. Find out more about Myerson here.
You might also be interested in reading our other blogs on bereavement and preparing for the unthinkable. You can find them here.
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