HENRY LEES ¨ SOLICITORS

We advise in all types of disputes relating to wills, estates and trusts.

While we at Henry Lees strongly urge people to make a Will, sadly many people fail to make proper provision as to what is to happen with their estate.

See the attached link http://www.direct.gov.uk/en/MoneyTaxAndBenefits/ManagingMoney/PlanningYourPersonalFinances/DG_10013642 If you do not make a will then your estate is divided in accordance with the strict rules of intestacy. This can result in partners and spouses receiving less than they expected and a potential claim for an additional share of the estate.  

 Even when a Will has been made, if it does not adequately provide for a member of the family or a dependant, it is possible a claim will be made. There are several bases for challenging testamentary dispositions. The Inheritance (Provision for Family and Dependants) Act 1975 has been the subject of judicial interpretation in recent years, in response not only to the continuing high divorce rate, but also as a consequence of social changes, such as the greater number of couples living together without marrying. There are other types of claim based on the validity of a will. We understand that a difficult and emotional time this is the last thing you will need to consider but we will guide you with a balance of sensitivity, strategic thinking and sound practical advice.

If you have children, you will want to consider who will care for them in the event of both parents dying.  Guardianship of children is dealt with by The Children's Act 1989 as amended by the Law Reform (Succession) Act of 1995.  You can appoint a guardian by will only if you have “parental responsibility” for the child.  That means all the legal rights, duties, responsibilities and authority of a parent.

It is important to consider the entitlement to make a claim; the time limits that apply; the grounds on which a claim may be made; the matters to which the court must have regard in deciding a claim; the orders which the court may make; the meaning of “net estate”, out of which financial provision under the Act may be made; the powers of the court in respect of dispositions intended to defeat the purposes of the Act; and those orders made in matrimonial proceedings disentitling a person from claiming under the 1975 Act; and the position of personal representatives and trustees vis-à-vis the Act.  There are also other challenges to testamentary dispositions, on the basis of the form and content of a will or its execution; the capacity or knowledge and approval of the testator; undue influence; fraud; or revocation of the will.   

In the last few years there have been statutory changes. Pursuant to Section 1(1) (ba) of the Inheritance (Provision for Family and Dependants) Act 1975 ("the Act") a cohabitee who satisfies certain qualifying conditions is entitled to apply for provision from the estate of his or her deceased's partner. Since The Civil Partnership Act 2004 this now includes same sex cohabitants. Amendments were introduced by the Law Reform (Succession) Act 1995, by section 1(1) (ba). It is necessary to show that the cohabitee had lived with the deceased during the whole of the period of two years ending immediately before the date when the deceased died;   and in the same household as the deceased and as the husband or wife of the deceased.  Not every house sharer qualifies.   Mr. Justice Neuberger asked “whether in the opinion of a reasonable person with normal perceptions, it could be said that the two people in question were living together as husband and wife, but when considering that question one should not ignore the multifarious nature of marital relationships." It is legally possible that a same sex couple could "live together as if husband and wife", and so the survivor could qualify as an applicant under the Inheritance Act and where the parties fail to register their same-sex relationship as a civil partnership.

By Schedule 4 to the Civil Partnership Act 2004 the Inheritance Act, are amended so   civil partners can apply on the same basis as heterosexual spouses. There is an important distinction between civil partnerships as opposed to mere cohabitation. The civil partner survivor is entitled to a higher standard of provision.  A difficult problem may occur when the relationship has resulted in a physical separation. Then it will depend upon whether the relationship was suspended, rather than extinguished.    The applicant will need to establish a failure to make reasonable financial provision and if so, then what constitutes reasonable financial provision?

The advice and information given on this site is of a very general nature, and may not deal with your individual requirements. It is believed accurate but Henry Lees cannot be held responsible for any action that may or may not be taken by anyone accessing this site and acting on the information contained in it. Our liability can only extend to specific advice given by qualified members of the firm after the completion of a formal client agreement and retainer letter.

Henry Lees is a firm of solicitors established in the United Kingdom and is registered with the Solicitors Regulation Authority.

Copyright © 2007 Henry Lees Solicitors LLP
Last modified: 10/28/08