Iftekhar Shah Answers Your Questions

Case Study A

Q My Father died suddenly without leaving a will, he was living with a lady but was not married, they were tenants in common, he had 33% share of the property which has no mortgage. I have 1 x brother, who has been dealing with the administration. we were his only next of kin. We have been paid the monies from his bank account by court order which we divided equally, but the woman he was living with does not want to give us our share of the property.

How do we stand?

A There has obviously been some previous history here, including making long term plans for The Children, who are often the driving force behind claims of this nature!

Do you know on what basis the 67:33 split was agreed? Was this any reflection of who contributed the purchase monies? Was there ever a mortgage and, if so, who paid it if they did not contribute equally? Why does you father's partner think that his already minority share should be reduced still further?

She has clearly taken advice to know that there is a prescribed time limit of 6 months from the date of the Grant within which to make a claim under the Inheritance Act but I would be surprised if she had been advised that it would be realistic to expect more than the life interest in your father's portion, which is already on the table.

I stand by my advice not to allow this dispute to descend into litigation but I rather suspect that there is a certain amount of bluff to call here before we get to the heart of the matter.

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Q My fathers partner is elderly around 70, and also they were together for around 17 years.

so I guess she would have good grounds for appeal. The house is worth around 180k no mortgage.

To give you all the facts what has happened is that myself and my brother have between us 33%

We told her she could live their for the rest of her life, and we would get our share upon her death.

She then said it was not fair for us to get 33% on her death and only wants us to get 20%

the rest to her children. 80%, how do we stand on this can she enforce this in court?

she then talked about selling the property and moving, I then said if the property was sold that i wanted

my share at that time, my brother was prepared to wait. so that would be 18k approx. if it was 10% or

30k if i get 16.5% which i think i should have.

This she has refused and threatened legal action unless i agree to both dropping our share to

20%, and also to allow her to sell in the near future, and for us to have a share in the new property.

my fathers partner has said that i only have a few days to agree before she instructs a solicitor....

obviously at this time i will need your assistance. what are your thoughts to how i should proceed?

A This is useful background and probably strengthens your case. It is not for a Court to interfere with a pattern of ownership which the parties have agreed in life unless extreme hardship would result.

I cannot say with any certainty what view the Court would take in view of the total disparity between your father's version of event and the story his surviving partner is now putting about. I suspect that the only issue of any relevance will be her ability to buy somewhere suitable out of her share of any proceeds of sale. A desire to increase her children's inheritance or to be spending your money not hers will not be successful.

I suggest that you say that you are happy to leave it to the Court to determine this issue as it is pointless to make threats or promises at this stage as neither party seem to be close to a compromise. This could be combined with an offer 'without prejudice' to allow her to live in the property on terms and it will then remain to be seen if there is any compromise to be found.

Case Study B

Q My Father suddenly passed away back in august, He left behind an estate worth between £3 and £6 million pounds. His will says that his entire estate is left to his spouse as the sole beneficiary and executrix. I knew that he was cohabiting with this woman as they were old friends and she also worked for him and had a daughter together 35 years ago, but he always insisted that it was a Platonic relationship latterly and that they were never married. I have since found out that they secretly married around 2 years ago when she was very ill and made basic wills that mirrored each other.

We have had very little contact with our step mother but we finally managed to have a meeting with her and the solicitor who drafted this will. He outlined that we were not mentioned in the will and refused to let is see it. He also indicated that she would like to make a gift of one of our fathers properties that she will refurbish in to two, two bedroom flats and give one to my brother and I each. She alleges that my father made this cleat to her verbally. I had been working on and off for my dad the past 5 years and the intention was that I would run his company when he decide to retire.

I suppose my ultimate questions are:

How can we find out if there is another will?

Do we have a legal right to see the will as beneficiary's under the law of intestacy? I know that I can see it after probate has been granted but what about before?

Should we take the offer or would that affect any claim that we made against the estate in the future and would we stand to receive anything under the Inheritance act 1975? (I was 23, my brother 20 at the time of my fathers death)

I can obviously go in to a lot more detail, but I think I have covered the basic facts here.

A This is a sad tale but increasingly common these days when one would think that increasing openness and transparency might avert some of the acrimony and the unexpected.

Your and your brother's rights arise under the Inheritance Act 1975 and conceivably under the general law if it can be claimed that your father lacked capacity or was subjected to undue influence.

Despite your both being direct blood descendents, neither you nor your brother have any expectations as of right and you would need to show dependency. In the case of an adult child (such as you both are) it would be necessary to show that you had been actively maintained by your father, which goes beyond working in the family business with a view to one day taking over and would require clear evidence that your father was providing a roof over your head and supplementing your earnings. You and your brother may find yourselves in different positions as he, being younger, may live at home and still be in full time tertiary education which in some circumstances can be tantamount to dependency. But even if dependency can be established, your claim would be for 'reasonable' provision which itself will depend not only on the value of the estate but also your own circumstances and those of the principal beneficiary, who sounds not to be in good health and may not have any other means of support.

The marriage two years ago will have had the effect of revoking any earlier Will. That is settled law and has the effect of wiping the slate clean so that in the absence of a valid Will, your father's estate could find itself being distributed under intestacy which would give both you and your brother (and your half sister) a defined portion of the estate. That is a far more promising outcome that seeking to invoke limited rights under the 1975 Act.

You describe your father's death as sudden which implies that his health was not subject to any gradual deterioration which would support an suggestion that he might not have had capacity when the Will was executed. Incapacity is notoriously hard to prove when the Will has been professionally drafted and witnessed as all the presumptions are in favour of validity and it is likely that the solicitor who drafted it will be able to give evidence that rebuts any suggestion of lack of knowledge and approval or undue influence. Some solicitors abuse their role and take the line of least resistance and fall in with what they contrive to believe are the testator's wishes simply because they are encouraged to do so by the so called 'next of kin', in this instance your stepmother. Even without your saying so, I visualise a fairly dominant figure who was capable of convincing your father that he should leave all his estate to her and, more importantly, not to you and your brother.

The implication is that your stepmother does not intend to leave her estate to you and your brother so there is a very real risk of all his wealth passing outside his immediate family and, worst still, ending up in the hands of your half sister is she is the only other probable beneficiary. If your stepmother intends, or can be persuaded, to leave her estate substantially to the three children, that would seem to be a fair end result and one which could be encouraged by skillful negotiation. The problem is that your stepmother will be aware, or will be so advised, that you and your brother most likely do not have a strong case in dependency so that she is not bound to make any concessions whatsoever and may be antagonised at the very idea.

There is an underlying 'unfairness' about this state of affairs and that could be harnessed towards agreeing a more generous variation with your stepmother. I don't know the substance and value of the provision she intends making but it seems modest in the context of the whole estate and rather less than she could safely forego. The signs are not good; the solicitor has adopted a dismissive stance and presumably will not entertain the idea that the estate is devolving anything but reasonably and fairly and in line with your father's wishes; but ultimately his role is insignificant if there is a consensus that greater provision for the next generation could and should have been made.

I cannot offer you much prospect of success but I hope that I have clarified the forces at play.

To answer your specific questions:

  • How can we find out if there is another will? This would be of very limited benefit in view of the revocation on marriage
  • Do we have a legal right to see the will as beneficiary's under the law of intestacy? Ultimately, the Will serves as evidence that the intestacy provisions do NOT apply but the Executor and her solicitor are entitled to keep their cards close to their chest before applying for probate of what they believe to be the last Will. You could enter a 'caveat' to prevent the Will being admitted to Probate but you would need good grounds for believing that the Will was invalid
  • I know that I can see it after probate has been granted but what about before? Yes, it enters the public domain once Probate has been granted but before then promulgation is entirely at the discretion of the Executor
  • Should we take the offer or would that affect any claim that we made against the estate in the future and would we stand to receive anything under the Inheritance act 1975? I cannot advise specifically but you will know from what I have said above that your prospects of a claim under the 1975 Act are not good on the face of it and that you may have to seriously consider whatever your stepmother is willing to give you. If you think that delicate negotiations with the veiled threat of formal proceedings might improve your share, then I would be happy to sit down with your stepmother and her solicitor, particularly if he is one and the same person who drew the Will
  • (I was 23, my brother 20 at the time of my fathers death)

If you have concerns over how your estate is going to be distributed after your death or if you are the victim of what seems an unfair distribution, contact Our London Wills, Probate and Inheritance Department

We can offer you an initial consultation at a reduced rate. For further assistance please contact, Iftekhar Shah on 020 7611 4848 or by e-mail ishah@rollingsons.co.uk to arrange a consultation.

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