Inheritance Tax  

How to protect your estate from have-a-go challengers

  • Learn about different factors that can trigger an inheritance dispute.
  • Understand why a challenge to a will might succeed.
  • Understand how to minimise risk of challengers.
How to protect your estate from have-a-go challengers

They say there is nothing as certain as death and taxes.

It seems a disagreement over the inheritance might need to be added to this list if the number of inheritance disputes reported in the media is anything to go by.  

On 18 June The Times reported on the bitter legal battle between two brothers over the estate of their mother.

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One brother, a successful banker, is due to inherit a much greater share under the will; his brother (less wealthy and in receipt of state benefits) receives a much smaller sum and claims his mother had a moral obligation to give him more.

This follows on from a case in January of this year in which three brothers argued over the £1.8m estate of their mother, with the son who lived at home and cared for her claiming a larger share.

Are disputes on the rise?

Last year, the Supreme Court ruled on a case of a disinherited daughter on state benefits who was excluded from her mother’s estate.

But is there really an increase in these disputes, or is it media hyperbole?

Key points

  • In June it was reported that a legal battle occurred between two brothers.
  • Freedom to leave one’s estate to whomever one chooses is a long-held English legal tradition.
  • When they occur disputes are costly.

The view from the coalface is that there is an increase. It is also important to remember that the cases reported are often only the ones that reach court – the majority settle out of court.

Disputes take different forms. There can be a challenge to the validity of the will itself; for example, arguing that the person making it did not have the necessary mental capacity to do so, or was forced to make it by someone else (undue influence).

Alternatively, the will may be accepted as valid, but the aggrieved party claims they should have a larger share. These claims are brought under the Inheritance (Provision for Family and Dependants) Act 1975 (commonly known as Inheritance Act Claims). 

In some ways, the increase in disputes is perhaps not surprising. 

Freedom to leave one’s estate to whosoever one chooses is a long-held English legal tradition (and one that differs from our cousins in continental Europe, many of whom have forced heirship regimes). 

People are often surprised that the court can interfere with a testator’s wishes, and understandably, people feel very strongly about this. One only has to look at the comments pages when these cases are reported in the press. 

Many disputes are driven not solely by financial considerations (although this is always a consideration) but the importance of the ‘principle’ of doing what the deceased person would have wanted (or indeed did want in their will). 

Added to this is a rapidly ageing population that brings with it an increase in those being diagnosed with dementia. Such a diagnosis does not, of course, mean a person does not have capacity to make a will – but the perception of others may be otherwise, which in turn leads to will challenges or questions over financial abuse and challenges to lifetime gifts.