Guide

Making a claim under the Inheritance Act

Gateley Legal

Article by

In this podcast episode, Catriona Attride is joined by Gavin Faber to answer some of the most frequently asked questions regarding the Inheritance Act. Together they will explain how you can make an Inheritance Act claim whilst discussing some key learning points they have encountered in previous cases.

Listen to our latest episode:

In this episode:

  • They define the 'Inheritance Provision for Family and Dependants Act' (the Inheritance Act).
  • They outline who is eligible to make an Inheritance Act claim.
  • They define ‘reasonable financial provision'.
  • They look at how you can make an Inheritance Act claim.
  • They discuss what makes a successful Inheritance Act claim.
  • Throughout they refer to a number of case studies and discuss what lessons can be learnt from those.

Subscribe to the podcast series

This episode is part of our Talking family and wealth podcast series. Learn more about the series and what we cover. This podcast is available on iTunes, Spotify and Soundcloud.

Read the transcript:

Catriona Attride:  Welcome to Talking Family and Wealth, your straight-talking guide to dealing with matters that are at the heart of the family in terms of planning for the future and protecting assets, and resolving difficulties that might arise in family relationships. My name is Catriona Attride, and I am a private client lawyer with over 20 years of experience supporting clients in their estate and tax planning. In each episode, I'll be joined by an expert and together we'll lift the lead on how best to handle everything from inheritance to divorce. Along the way, we'll share some of the situations we've encountered, some good, some bad, and many ugly, but all useful in helping you to protect your family and wealth. Today I am joined by Fiona Debney, legal director in the private client team here at Gateley. Hi Fiona.

Welcome back to the podcast. I'm joined today by Gavin Faber who heads up our contentious trust and probate team at Gateley Legal. Gavin joined me a few episodes ago and we talked about challenges that can be made against a will or said to be by a parent, but any other relative if we feel that it's unfair or hasn't made the right provision. We're going to look at today further options that are available to people in terms of claiming against an estate if they feel they haven't been provided for properly, and also just to look at where this leaves people where there perhaps isn't a will and they don't inherit automatically under intestacy rules. So, welcome back, Gavin.

Gavin Faber: Hi Cat.

 

Catriona Attride: So, I think, first of all, should we talk about the Inheritance Provision for Family and Dependants Act with its lovely long title and explain what that bit of legislation is and what it can do to help people?

Gavin Faber: Yeah, absolutely. I think we'll call it the Inheritance Act for otherwise this might go on even longer.

Catriona Attride: Absolutely.

Gavin Faber: Yeah. So, effectively, as I said last time, that in this country, in England and Wales, you're not compelled to leave your estate in any particular way or direct under a will, what should happen to it, and make provision for anyone in particular. So, you've got complete freedom, but often, as we all know, people don't get round to making wills so they may well die without one, and that's known as being intestate, and as you alluded to, in an intestacy situation, there were very strict rules as to what people can inherit from an estate, and those are just set down and there really isn't any wiggle room.

Now, whilst there is this fundamental principle that you can do what you like with your estate, parliament understandably many years ago, took the view there were certain categories of person that, irrespective of what the person whose died wishes are, they should still be provided for, and those are typically spouses, husband and wife, children, which I will talk more about because there is definitely a distinction between adult children and minor children, children under 18, cohabitees, and other dependents, people that are already being maintained by someone while that person's alive. And those individuals, the courts give them an opportunity to bring a claim and say, "We've had this provision." So, it might be provision under a will, or it could be under the intestatacy rules or indeed they might not received anything and it's not enough, and the way that court looks at it is whether or not reasonable financial provision has been made for them, and as I say-

Catriona Attride: And under the... Sorry, sorry. And under the cohabitee bracket would fall people who consider themselves common law husband and wives. Of course, there actually isn't such a thing as a common law husband or wife, but sometimes people have an assumption that because they cohabit and have lived together for a long time that they do have a right to inherit, and actually that's not the case, is it, and therefore when people die unmarried but with a long-term partner, that long-term partner has absolutely no automatic entitlement on death.

Gavin Faber: Absolutely. To be honest, that's probably one of the largest areas where we see claims under the act, and I've been involved in some terrible situations where literally overnight, someone's died unexpectedly, particularly when they haven't actually made a will, and their entire estate goes, often it maybe children from a earlier marriage, and it leaves that partner without anything at all, and their only option then is to bring a claim under the Inheritance Act.

Catriona Attride: Yeah, I had a case a number of years ago and it was a couple and they'd been together very many years, but all the assets were in the partners' name and he died unexpectedly. No children and the beneficiaries under the intestacy were his parents who were divorced, and he hadn't even seen his father since he was about two years old. And so, the parents were going to share the whole estate and our client was going to get nothing. She brought a claim and she obviously was provided for, but it was a really, really difficult case because the father who didn't even know his son was determined to keep hold of his half.

Gavin Faber: Yeah. I mean, similar situations and one that always sticks in my mind is one exactly with the children. We often talk about children from the first marriage and there may well be an issue of how their father or mother and the other person they're cohabiting with came together, and there's no love loss, lots of animosity. And the one case, as I say, always springs to mind, and there was quite a valuable company involved and the partner was involved in that, but nothing was in her name. And overnight, there was letters firing off within 24 hours saying, "We need this, this, this, and this to be handed over. We're not going to pay any more bill." I mean, to the point where they cut off the Sky, and this was in a multimillion pound estate.

Catriona Attride: Right.

Gavin Faber: And of course, not only did that cause immediate cash flow problems, but it's at a time where the partner whose partner of over 30 years was grieving for the loss of the partner.

Catriona Attride: Yeah, of the long-term partner, yeah.

Gavin Faber: It really creates a problem, and it may be the case that you are acting for those children, and I certainly acted for those children. And sometimes there is a huge amount of baggage that comes with it, and understandably, they've got no relationship with that partner and feel animosity to them, but there's a right approach to take, and sometimes it's better just put the handbrake on for a week or two, and it will mean that things can progress and may even be settled without any claim or anyone needing to pursue court proceedings. I mean, interestingly, in the case I was talking about, my initial conversations with the partner were very much that she was reluctant to bring any claim. She really didn't want to actually get involved in court proceedings.

Catriona Attride: She didn't want to actually engage.

Gavin Faber: And it was only the very aggressive tone of solicitors' letters that landed coincidentally between Christmas and New Year because the partner had unfortunately died just before Christmas.

Catriona Attride: Oh, great timing.

Gavin Faber: Yeah, you couldn't have teed up any more, and on the back of that, we ended up with quite a nasty claim which took quite a bit of work to settle, and she ended up with a very, very sizeable chunk of, as I say, a multimillion pound estate. But it's not always the case that it does involve multimillion pound estates. It could involve simply a property that was in one of their names.

Catriona Attride: And those sometimes are worse. Yeah, I mean, that can be the worst though, can't it, because actually, sense almost leaves the window. Principles come in, and as I often say to clients, principles are very costly, and actually, it needs some pragmatism sometimes, doesn't it?

Gavin Faber: Well, it is, and it's sometimes you have to, certainly as an advisor, have to step back and be that sense check, and just be that reality point where you can say, "Look, I appreciate what you're feeling about this, but we need to filter this because if it's managed properly, then there shouldn't be any need to bring court proceedings." It's generally pretty obvious, well, very obvious whether or not someone falls into one of the categories of a person that can claim, but there is a second level to this, and that's down to the type of claimant they are. A spouse is treated very differently to everyone else.

Catriona Attride: Absolutely.

Gavin Faber: So, everyone else, their claim is looking at their maintenance needs, and there's no strict definition of maintenance, but it's generally taken to be day to day living expenses, and that can put quite a sizeable cap on the amount that you claim, and this causes problems, particularly with cohabitants because they can't claim the same as a spouse.

Catriona Attride: No, of course.

Gavin Faber: And if they've been in a relation for 30 years, it can create all sorts of problems and a real sense of unfairness, and one of the most obvious ways that the courts often distinguish between them, because when they're looking at maintenance needs for a cohabitee, they might only then ultimately be prepared to give that person a right to live in the property for life, rather than transferring it to them outright, whereas a spouse, they're more likely to get that.

Now, those aren't set in stone, and there are cohabitee cases where people have been given the property outright, and conversely, there are cases brought by husband or wife where they haven't had the house outright, but that can be very significant because it could have been the family home for decades, and there are other issues in terms of maintenance. If you're bringing a claim for someone who isn't a husband or wife, then you are looking at scheduling all their income, all their expenses, all their assets, all their debts and liabilities, and you have to show to a court that, actually, there is a real need to take something or to take more from an estate. It's not just a given because you fall into a category that you are automatically entitled to more than you're otherwise getting.

Catriona Attride: Mm, yeah, absolutely. And I think with the spouse, we were involved in a case together where we had a... I was acting for the spouse, and when we were in front of a judge, not a trial but an FDR, he was very much looking at it almost as what she would get in a divorce and looking at the whole pot and fairness overall, rather than, like you say, just the maintenance needs which is what is that elevated status, isn't it?

Gavin Faber: Yeah, it is, and I should say and it's remiss of me not to, when we're talking about spouse, we're also talking about civil partners now as well.

Catriona Attride: Of course.

Gavin Faber: So, yeah, it is. I mean, when you're acting for a spouse, there is this phrase that's used that you look at a deemed divorce fiction, and fundamentally the courts look at it and say, "Well, why should a spouse or a civil partner be prejudiced and worse off than they would be if they got divorced a day before that person died?"

Catriona Attride: Absolutely.

Gavin Faber: You often look at it. I mean, again, it's made clear by the courts that it's not a minimum or a maximum, but generally speaking, you would be looking at that as a starting point, what would they have got on a divorce, and when you are looking at these types of cases on a divorce, it is slightly different because of course, in a divorce scenario, you've got two people that have to be provided for. When you're talking about a claim by a spouse under the Inheritance Act, there's only one that's still alive.

But nevertheless, the courts will look at it and the way that they do approach it, there are two ways to effectively claim, and that could be either you're looking for a share and general principles is you would be looking often at what would be a 50% share of the combined assets. But there are subtle distinctions, which are probably too detailed to go into for the purpose of this podcast, but as to whether there are matrimonial assets or non-matrimonial, but the court will also approach it on the basis of whether they have a needs-based claim.

So, you might have a sharing claim or a needs-based claim, and the needs-based claim, it is very similar to the other types of case, although it's not based solely on maintenance. They can become very tricky. And I always say to people with these cases, it's very easy to see who has the potential to bring a claim, who falls into the statutory definition of someone entitled to bring a claim. That's easy. What is often incredibly difficult is actually trying to value and quantify what that claim might be worth, and that's where the sort of experience and expertise of dealing with these cases and large numbers of them over a number of years and seeing what decisions the courts are making that enable you to come up with a band of possible outcomes, and that's as close as you can get because if anyone ever tells you will get X or Y, then they really aren't giving you good advice because the court has so much discretion that they can really come up with decisions that don't seem to follow any of the earlier cases, but they are specific and case specific to that particular matter, and that means that there's always a huge risk.

And quite often in these cases, the difference between what you might get on a bad day and what you might get on a good day can be substantially different, and I'm certainly seen in cases where you're talking about differences of millions of pounds. And like you said, it's perhaps the other types of case where there isn't a big estate and there might just be a property and a few funds, that can make a real difference as just whether someone comes out of a claim actually better off after they've had to pay legal costs than had they not bothered at all. It can be very difficult on those lower-value claims to really assess them properly.

But it is crucial that you get good advice at the start, looking at what the likely outcomes will be because I've seen so many cases that have rambled on for a long period of time, incurred a large amount of cost for everyone, and there is no way of determining it at the end of the day where anyone's going to be better off because there just isn't that pot that's sufficient to be able to pay everyone what they reasonably need, in which case, the courts are then going to start having to look at well, what's the best we can do with this scenario.

And there's been some really, really difficult situations, and I think probably the hardest ones are the ones where there is fundamentally a property because very often, you're going to end up with perhaps siblings who are sharing the property, and one of the siblings is living in it, and they bring a claim, say that I want to be allowed to live in this until I die. And so, their brothers and sisters are having to incur lots of legal costs, and if they lose potentially a big cost order against them, as well as their own cost, they might have to pay the dependent's costs, or conversely, that dependent may end up being responsible for their costs if they're successful, but of course, they don't have anything.

Catriona Attride: No, exactly.

Gavin Faber: So, you're not going to get those back, and you can get in real difficult situations where those cases are run, and I can think of probably half a dozen where they are, frankly, impossible to determine Because there just isn't a good outcome.

Catriona Attride: No, no, well, no, there isn't. And also, I think, it's the damage that it does to the family. The family's already damaged, but in many of these cases, by the end of the litigation, those family relationships are completely over. I have over the years said to clients when they've looked at pursuing claims, think very hard before you do because this is going to be a very much an emotional rollercoaster at a time you're already grieving, but this will be the end of your relationship, probably, with those people. And I think that's the other cost of this sort of litigation that people don't appreciate at the start.

Gavin Faber: Well everyone has a fixed view and depending on which side of the fence you're on. If you are the person who's receiving the estate, you say, "Well, that's what they wanted. I'm going to apply those wishes."

Catriona Attride: Exactly. You're right, yes, yes.

Gavin Faber: And if you are the person that feels wronged and haven't had provision, then you equally feel very strongly that you've been badly let down by the person that you loved.

Catriona Attride: Exactly.

Gavin Faber: So, it is very difficult, but I mean, one of the things that I think might be useful for people to understand is what will the court actually look at. We've talked about maintenance or non-maintenance claims, but irrespective, what is it they're looking at. I think it's important to understand that they're looking a whole range of factors which are again set out in the Inheritance Act, and they do differ so I'm not proposing to go into huge detail on the different types of applicant. But largely, you're looking at the financial needs and resources of the person making the claim, the people that are benefiting under the will or the intestacy, and also perhaps other applicants.

You mentioned quite often with these claims, you not only get one applicant, you might get two, three, or four applicants. So, they all have to give disclosure and provide full details of their incoming, outgoings, expenses, liabilities, and assets. And something else that needs to be in mind is that often it's not just their assets, but also the assets and full financial details of their spouses or partners because that's something the court will take into account, and the timing of when the court's take into account is important. It's at the trial. So, if someone's financial circumstances change dramatically for the start when they might intimate a claim to the actual date of trial, then that can have a very big impact on what they're ultimately awarded. So, the obvious scenario, although I can't say that I've ever had it happen yet, is someone wins the lottery, and that obviously will have a big bearing and may well knock out a claim.

I mean, I have come across scenario frequently, where someone, unfortunately, bringing a claim has died and that's instantly finishes the claim. You can't, if you're acting in their estate, carry on with it. The claim falls away when they pass away. So, that's something to bear in mind.

But in terms of the other factors the court's going to look at, they will look at sort of obligations and responsibilities of the person who died to that applicant and other people, the size and nature of the estate. So, what does the estate consist of, how valuable is it. I think a very important factor is physical and mental disabilities of either the person bringing the claim or any applicant or beneficiary because that can have a big bearing, and I mentioned earlier that I'm going to come back to sort of child claims because I think they need to be looked at slightly differently, but that can have a very big bearing on whether, particularly as an adult child, you are likely to succeed in getting some provision, additional provision from the estate or not. So, that's something else that the court will take into account.

But also, the person's wishes is an important factor, although it's not determinative. Because someone decides they want to cut you out doesn't automatically mean that you will be cut out if you satisfy the court that reasonable financial provision wasn't given for you and you should be given more.

Catriona Attride: Yeah. I mean, you mentioned children. I think this would be a good for place to talk about children because as you've mentioned, there's a very big difference between a minor child and an adult child, and there have been a number of cases over the years where the courts are not necessarily very sympathetic to adult children's claiming under the act, in the sense that the court have the view that they're making their own way in the world, unless there's very clearly a maintenance argument.

Gavin Faber: Yeah, I think that's right. So, I think the court does look at it very differently. So, when you're an adult, fundamentally, court expects you to be able to stand on your own two feet, and as such, they're not always particularly sympathetic to them. Now, that's not to say that as an adult, someone who's 19 shouldn't be able to bring a claim under the act, and I would say a good many of the claims that are brought under the Inheritance Act by children are adult children but that doesn't necessarily mean they're a particularly valuable claim or have a huge amount of prospect, a huge chance of being successful.

We often talk about nuisance claims and I think the majority of nuisance claims where there really isn't much prospect of success, but there could be. There's always a risk. The strongest claims never get more than a 70% chance of success when I'm advising because you never quite know what's going to happen, what someone's going to say on the day at trial. And so, invariably, there's a 30% chance of losing even in the strongest claims or the strongest defenses. There is often a body of adult child claims which really aren't very strong, but have a nuisance value, and it's cheaper and more economic to pay them off with a relatively modest sum rather than go through, spend a lot of money going to trial, and then be in a position where you might struggle to get costs back anyway even if you're awarded them from that child who bought the claim.

But so I think fundamentally they are expected to provide for themselves, and even if you're on benefits, that doesn't give an automatic entitlement, although if it's for medical reasons, for example, or that you've always provided for by a parent, they might have been helping with rent payments or something along those lines, then that would give you a pretty solid claim under the Inheritance Act. When you're talking about-

Catriona Attride: In the context of adult children, the most recent case where this was looked at in real detail was Ilott versus Mitson which was a case where, and correct me if I get any of the facts wrong, but the testator was estranged from her daughter, and she left her estate to the RSPCA, I think it was, wasn't it? The case went all the way to the Supreme Court because we have varying decisions, didn't we, on this point. Can we just talk a little bit about the significance of this and what the courts were thinking?

Gavin Faber: Well, yeah, I mean, as you say, it actually went up and down the courts so many times, it ended up in Supreme Court, but I think it was in the Court of Appeal a couple of times.

Catriona Attride: Yeah, it was.

Gavin Faber: Fundamentally, it was a case where the leading Supreme Court judges looked at it, and whilst they summarized the position to an extent, it wasn't necessarily as clear-cut as us that that deal with it on a regular basis would like. But in that case, the daughter was estranged and that was undoubtedly a factor, and I suppose what sums it up was that the Supreme Court decided they weren't going to overturn the original decision which was to award her £50,000. But one of the judges commented that had it been heard now, she might have got £50,000, she might have got nothing, she might have got a lot more.

Catriona Attride: Helpful.

Gavin Faber: No, not in that extent. But, I mean, I think there were certain authorities and summaries that we can draw from it, and I think fundamentally, one of the principle points was estrangement. And the courts have sort of really struggled with this issue of moral obligation, whether there's a need for a moral obligation, and I think the position-

Catriona Attride: She wasn't financially maintained either though, was she?

Gavin Faber: There was no financial maintenance. She was on benefits, and that was a factor on it.

Catriona Attride: That was a big issue, wasn't it, yeah. So, no financial maintenance, no relationship with the deceased, and therefore, if we were looking at it on the face of it, if this was someone who came in to talk to you about making a claim, you would have the older case of Re Coventry in your head which was always along the lines of adult children don't do very well in this sort of case, and other than perhaps some nuisance value which you mentioned before, you wouldn't necessarily expect them to do terribly well.

Gavin Faber: Again, it's not necessarily quite as clear-cut as that. I think it is generally the view that certainly where there's an estrangement, that's going to make it difficult. But for example, the courts will distinguish between an estrangement that's arisen because they've just children and parents have just had no contact or one that's driven by the person who's died. And if the parent has been the one and the child has repeatedly tried to reconcile and have a relationship with them, then that may well have an impact on it.

Catriona Attride: A bearing, yeah, yeah.

Gavin Faber: Of course, the flip side of that is that where there is an estrangement, then just because as a society, we think that that parent was harsh and should have actually accepted the efforts to reconcile. Of course, the court's not there to make those sort of general observations and start sanctioning people because they don't agree with their moral compass.

Catriona Attride: Yeah, yeah.

Gavin Faber: It's a very tricky one, but I think when you're trying to assess the prospects, you will always look at estrangement as being a significant factor, without a doubt, and also, moral obligations. And as I say, there could be estrangement, but if you've got real medical needs or you might be, and we come across this a lot, there's an estrangement because the parent didn't like the partner that their child was meeting, and it could be for any number of reasons. But that partner might be someone who has a disability or some special need for support, or indeed, a child of theirs might have needs whereby the court will look at that. Again, there's a subtle distinction because a grandchild doesn't automatically fall into a category of a person who can bring a claim.

But undoubtedly, you will see maintenance claims for a child where it will roll into or include a need for provision for their child, particularly where there's a special needs or a disability or something that requires additional support. So, I think that does feed into it. In summary, I don't think Ilott Mitson, you can turn around and say, "Well, it sets specific parameters on what's going to happen." But I think it does give generally very good guidance of the factors that ought to be considered, and how you sort of approach the claims to look at with an overview because you just never know precisely how it's going to evolve.

Catriona Attride: And I think that's the message really, isn't it, if you are an adult child where there isn't a clear case of maintenance, then you need to be aware of the fact that your claim is by no means certain, but that doesn't mean you haven't got one.

Gavin Faber: Yeah, I think that's the case, and there was a very recent case where two elderly daughter, I say elderly, they were not that old.

Catriona Attride: They weren't old at all. I know the case you mean.

Gavin Faber: Yeah, they were established and they were fairly wealthy in their own rights and they had had support from their father over a number of years. But he'd got to the point where he felt that they were just using him financially.

Catriona Attride: Yeah, didn't they call him the bank or something? They had fairly unpleasant nicknames for him.

Gavin Faber: Yeah, and they didn't do very well in claim or on their efforts to appeal it. But I think the fact that they still pursued it on advice presumably just goes to show how difficult it is to say categorically whether something's going to succeed or fail. It's very often when you look at the judgment, you think, "Well, this is obvious," but actually that's because the judgment is framed in a certain way to support the findings.

Catriona Attride: Yes, of course. Yeah.

Gavin Faber: It could be that if the judge took against in that case, I think it was a spouse or a partner as against the children, then it might have been a very different outcome.

Catriona Attride: Yeah, absolutely.

Gavin Faber: But when you're talking about minor children, and again, there's been a recent case on this, and I think it's the sort of conclusions I draw from it, seemed fairly obvious that there was one where there was an estrangement and the father wasn't supporting, was supposed to provide financial support for his children, but didn't. The court took the view, nonetheless, that they should be provided for from his estate because there is a moral obligation and a duty of a parent to look after their offspring. So, I think if you've got a situation with children who are under 18, and we say under 18, but it could be that they're in tertiary education, they're at university or in some form of training that means to have a reduced ability to earn, it might be that or it's likely that the court's going to be far more sympathetic.

But again, it's all a question of looking at that particular case and all the facts and circumstances that are completely different to any other case because every situation is different, and I've certainly seen claims, and one springs to mind, where a daughter was seeking to claim for a very expensive violin because she was an expert violin player and produced evidence that she may end up being professional in an orchestra, and so she needed this. And I can't remember the exact amount, but 50, £100,000 violin, and that would fall within a potentially a maintenance need. I mean, that, that's very unusual, but it could be that often you're talking about obviously the costs of bringing them up. It might be school fees. It might be, particularly if they've also got medical issues or educational issues. It could be providing for additional support. But they will be more sympathetic generally the courts to those types of claim which I think everyone would say would be a fair, a fair approach.

And of course, even if there's estrangement, often the court will take the view, well, that's down to the parent should be the bigger person, and it's not always the case, and I can think of a number of clients where they've tried absolutely everything to have a relationship with children, and often the case that their former partner has poisoned their minds, and they just won't, just impossible to have that relationship. But I think even in those circumstances, whilst the court might take into account, the likelihood is they will say, "Well, you still have that responsibility as a parent to a young child."

Catriona Attride: Yeah. So, before we wrap up, I think another thing to talk about is lifetime promises which has got the very ancient name of proprietary estoppel, which is another area that people might look at trying to make a claim under if they don't have a claim under Inheritance Provision Act, or if they have had, and relied, to their detriment, on a promise made by a deceased person which they then didn't follow through on. So, can you just talk to us quickly about that?

Gavin Faber: Yeah. I mean, this is something where I think probably a fair few years ago, the courts was trying to move away from it, but now I increasingly see claims including it potentially as an additional claim. And bizarrely enough, a lot of these seem to involve farmers where they promise a nephew or a worker that it all be theirs one day, normally in a cowshed at three o'clock in the morning.

Catriona Attride: Yes.

Gavin Faber: On the back of that, that person has worked at the farm for years and years and years, often on a nominal wage, and when they pass away, they haven't made a will so it all ends up with a sibling in Australia. You can bring a claim if you can show that there was a promise or an assurance given, and most importantly, that you relied on that promise to your detriment, and that's a key factor. You've got to show that you've suffered as a result of relying on that promise and that overall, the courts would look at it and say that it's just really totally unfair that you shouldn't get some benefit. And so, in those circumstances, the court might say, irrespective of what the will does or the intestacy rules say, that person is entitled to have the promise upheld.

Now, it's not a simple as that because there are different approaches that can be taken, and often the courts will look at doing what we call the minimum to do justice. So, they might well say, "Well, you've been promised the farm, but actually, the detriment you suffered wasn't quite as great to justify that in all the circumstances. So, we're going to give you a sum of money that would equate to a proper wage for 25 years." I mean, that's probably an extreme example, and I think if you've been doing it for 25 years, you've probably got a good chance of getting the farm. But it is a situation where the courts won't automatically uphold precisely what was promised, particularly when it's land, and it's not always. There are other types of what we call estoppel that don't always involve land, but typically, that's where it arises. And it genuinely isn't just farmland, but as I say, just seems to be a theme that often it's the farmers that don't actually get their affairs in order properly. They're not very good with paperwork I think it's fair to say.

Catriona Attride: I think that's a fair assessment, yes. And how do you go about making that sort of claim because I suppose one of the things is you haven't necessarily got any evidence of the promise, have you, because it's a verbal discussion between you and the deceased person.

Gavin Faber: Well, when you're talking about evidence, I assume you mean documentary evidence.

Catriona Attride: Yeah.

Gavin Faber: Of course, evidence, and often the strongest evidence is witness evidence. So, what people say, and there might not be documents to back it up. I mean, those circumstances, there generally isn't a dispute as to whether or not that person worked on the farm. There might be a dispute as to the extent of what work they did. And often, they may have, well, not often, but occasionally, they might have another job because it might be a child that's worked on the farm, but not exclusively. It could be that they were paid. So, there might be disputes about what they actually received which produces the sort of element of detriment. There might be all sorts of arguments over whether that promise was made, and then you're looking at sort of anecdotal evidence of what that farmer might have said to a friend in the pub or another relative or various other family members. Often their bank managers, they seem to have a better relationship with them.

Catriona Attride: Or the NFU.

Gavin Faber: Or the NFU, the insurance brokers piecing together all that information. So, they're not easy claims to succeed with. And very often, at the outset, there'll be a letter of claim that goes off that refers to it, but when it actually comes to proceedings being issued, I don't see anywhere near as many following through as you might expect given how often it's referred to. They are difficult, and ultimately, it'll come down to whom the judge believes in whose evidence they find most reliable.

Catriona Attride: Yeah, of course, of course.

Gavin Faber: And to be honest, that's probably the best thing to take out of this and to explain why these types of claim are so uncertain, and why it's so important how you frame it and getting good advice is that it's very, very difficult to predict what's going to happen because fundamentally, if a judge likes the claimant, they're more likely to find for them and work the facts and the law to support that finding. And if they don't like the claimant and prefer the defendants, then they may well lose the claim. And you could have two very similar set of facts where you get a completely different outcome and it's about how the judge finds the witnesses and who's the most compelling.

Catriona Attride: Yeah, absolutely, absolutely. Well, on that note, I think we'll wrap up. Thank you very much for talking us through that. And as ever, if anyone listening's got any specific questions or further queries, they can always get in touch with you, and I know you're always happy to answer any questions.

Gavin Faber: Absolutely, absolutely. And the best advice is speak to someone early on.

Catriona Attride: Yeah.

Gavin Faber: Don't leave it. What we haven't mentioned is the time limits and that when you're talking about an Inheritance Act Claim, you only have six months from the date of a grant of probate or letters of administration. So, you don't have that long.

Catriona Attride: You don't have time to hang around either.

Gavin Faber: Mess around, no.

Catriona Attride: No, absolutely. Okay. Well, thank you very much, Gavin, and I look forward to you joining me again in the future to talk about another contentious issue.

Gavin Faber: Thanks, Cat.

Catriona Attride: Thank you for listening to talking family and wealth, to find out more about the series, please visit gateleyplc.com//talkingfamilyandwealth. From here, you can subscribe for all updates, meet our speakers and get more information on all of the topics being discussed.

Do you need advice regarding making an Inheritance Act claim? Or do you need help defending such a claim?

We have extensive experience of all types of disputes related to wills and probate. We can help you to:

For more information request a free consultation by completing the form below.

Get in touch

Gateley Plc is authorised and regulated by the SRA (Solicitors' Regulation Authority). Please visit the SRA website for details of the professional conduct rules which Gateley Legal must comply with.

SubscribeHide

Forward thinking insight

Direct to your email inbox

Subscribe now