Briefing Note

Claims Against Estates

December 2020

Please note that this Briefing Note is not maintained, and reflects the law as at the date of publication or update

Introduction

This guide has been prepared by us to assist you in understanding some of the main issues that you should be aware of in relation to making claims against the estates of deceased persons. The guide is not intended to cover in full all aspects of the matter and should not be relied upon as legal advice. If you have any queries concerning your personal situation you should contact us for advice on your specific circumstances.

The Rise in Cases

There has been a significant rise in cases of people making claims against the estates of deceased persons in recent years. The reasons for this are complex and varied, but certain key elements of 21st century society stand out as obvious candidates:

  • An ageing population leading to increased occurrences of dementia and other cognitive impairments;
  • The decline of the “nuclear family” and the emergence of new family forms and relationships;
  • A heightened awareness that claiming against estates is possible, which has largely arisen through increased media attention to such claims;
  • An increasingly litigious culture generally.

Contentious Probate

In general terms, Probate is the process of administering a person’s estate after they die; collecting in their assets, paying their debts and distributing what’s left to the beneficiaries. So “Contentious Probate” is a catch-all description for situations where that process is challenged. It is a highly specialist area with many different types of claim, but in layman’s terms the main challenges people make fall under the following general categories:

  1. The Will was not properly signed (or “executed” in technical terms) – the requirements for the proper execution of a Will are very strict and any deviations can result in a Will being declared invalid;
  2. The deceased person did not know what they were doing when they made their Will (they did not have “capacity” or “know and approve” of the contents of the Will);
  3. The Will does not express the deceased person’s wishes, but someone else’s (they were “unduly influenced” in making their Will);
  4. The deceased person did not provide for me, or did not provide me with enough, in their Will (they did not make “reasonable financial provision” under the Inheritance (Provision for Family and Dependants) Act 1975);
  5.  Someone may have an interest in the deceased’s property that is not obvious from the legal title (such claims are known as “proprietary claims” against the deceased’s property under the law of trusts and estoppel).

It is important to note that claims against estates are not usually as simple as the above statements suggest; they simply represent the main “angles” from which one can approach such claims and determine whether there is a case to be made. The analysis of whether a claim is likely to succeed or not often involves a thorough forensic investigation of the facts and circumstances of the matter. There are quite literally hundreds of Acts of Parliament and court decisions that may be relevant, but the law is designed to protect the freedom of people making Wills (known as testators) to decide what they want to happen to their estates when they die, and if you have legitimate concerns about whether any of the above statements may be relevant to the estate of someone you know who has died then you should seek legal advice at the earliest opportunity.

It is also important to note that claims can be made when a person dies without having made a Will, i.e. when they die intestate.

Time Limits

Statutory limitations can prevent claims from being made if too much time has passed. Many claims in contentious probate have very loose limitation periods that are applied at the discretion of the courts, but some claims, such as claims under the Inheritance (Provision for Family and Dependants) Act 1975 (“the Inheritance Act”), have very strict deadlines.

Claims under the Inheritance Act must be made within 6 months of the date Probate was granted in the estate. Occasionally the courts will allow claims to be made outside that window but the court must grant permission before it will do so and it will require you to demonstrate a number of things before your claim can even get off the ground. This may increase the costs of making a claim and risk the court striking your claim out, thereby preventing you from making a claim at all. This can be particularly difficult if your claim is strong because the deadline may be enforced regardless. The safest course of action if you are contemplating a claim is to seek legal advice as soon as possible.

Interest

One crucial point that people often miss is that only certain people can make claims against an estate, although it is important to note that the people who can make claims against an estate are not limited to family members. The starting point is that you must have an interest in making a claim.

In general terms having an interest means that you either have something to lose or something to win if the estate is administered in a certain way, for example in accordance with a later Will rather than an older Will. So if you stood to benefit under an older Will but in a later Will you were disinherited, you may have an interest in challenging the validity of the later Will. That is not to say that your challenge would succeed, merely that you would be able to demonstrate that you have an interest so you can begin making a claim.

There are stricter limits in the Inheritance Act which specifically sets out the categories of people who can make claims for reasonable financial provision under that Act. They are:

  • A spouse or civil partner;
  • A former spouse or civil partner provided that they have not remarried;
  • A person who cohabited with the deceased as husband and wife or as civil partners for at least 2 years prior to the death;
  • Children of the deceased, including adopted and illegitimate children;
  • People who were treated as children of the family (this may include step-children);
  • People who were being financially maintained by the deceased.

Costs

A common misconception about Contentious Probate claims is that the costs of making a claim will be paid out of the estate. Sometimes that is the case but the starting point is that the Civil Procedure Rules apply, which means that the costs are entirely at the discretion of the court. As a general rule, under the Civil Procedure Rules the unsuccessful party pays the successful party’s costs. There is therefore a risk that if you make a claim and are unsuccessful you could end up liable for substantial costs and, as with any litigation, Contentious Probate is not something to be embarked upon lightly.

But you certainly shouldn’t let this deter you from making a claim if you have a strong case. The vast majority of cases (somewhere in the region of 90%) never make it anywhere near a court, which means the court won’t order you to pay the other side’s costs. Those claims often settle out of court and the parties agree between them who will be responsible for the costs. In many cases the parties will agree to shoulder their own costs for the sake of settling the claim. There is a strong push from the courts now encouraging parties in litigation to consider Alternative Dispute Resolution procedures like mediation, and the courts can impose significant costs sanctions on a party who unreasonably refuses to mediate. So there will usually be every incentive to agree a settlement out of court giving you greater control over the costs you incur in making a claim.

Lawyers are also obliged to give you their best estimate of the likely costs at the outset of a matter, and to keep you updated at appropriate junctures as the matter develops, so you can be confident there will be no surprises. The courts also now require detailed costs budgets to be submitted and approved by the parties in the early stages of most claims that have been formally commenced to ensure the costs are fair and proportionate. The days of Dickens’ Jarndyce -v- Jarndyce are now the distant past and you can rest assured that our lawyers at Gaby Hardwicke will keep you fully apprised of the position regarding the costs of your claim at every step of the proceedings.

Specialists

 At Gaby Hardwicke we have specialist lawyers who can help you with most types of claims against estates. In addition to the claims mentioned above we can also assist you with:

  • Applications to remove Executors and Trustees;
  • Claims in the Court of Protection over contested Deputyship applications and Attorney disputes;
  • Applications to make or oppose a Statutory Will;
  • Claims against Personal Representatives for the improper administration of an estate;
  • Applications relating to the interpretation, construction and rectification of Wills.

Key Contacts

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Contact us

To discuss how we can help you email info@gabyhardwicke.co.uk or call one of our offices:

Eastbourne: 01323 435900

Hailsham: 01323 449552

Bexhill: 01424 735000

Hastings: 01424 457500