Question: We have problems with our wills. We have three married children with families but are estranged from one and one grandchild. With our other children’s consent, we have left everything to our five grandchildren, including the estranged one. Can the child who’s estranged from us do anything about the will; this child’s the eldest so would probably think they should handle everything. Our other two children are executors and know our wishes. Is there a way we can ensure everything is done the way we want?
Answer: The Inheritance (Family Provision) Act 1972 sets out the classes of persons who are entitled to “contest” a deceased estate and seek provision therefrom. Accordingly, your eldest child is an eligible “claimant” if he/she chooses to make a claim on your estate.
The purpose of making a will is firstly so you can determine who will be appointed to manage and administer your estate (the executor). Secondly, the people you wish to benefit from the assets.
However, distribution to these people is subject to any claims for provision which are made by eligible claimants under the Act.
The executors have an obligation to ensure your assets are distributed in accordance with your will and cannot deviate from the provisions outlined unless the Supreme Court otherwise orders after a claim for provision or the beneficiaries reach agreement to a different form of distribution.
Leaving your estate equally between your five grandchildren may seem fair and equitable as you have not precluded any grandchild.
However, the fact that you have not made provision for any of your three children could open your estate up to an inheritance claim from any one of them, even the ones with whom you have had frank discussions about your wishes.
Any person who can demonstrate he/she has been left “without adequate provision for his/her proper maintenance, education or advance in life” is likely to succeed in any inheritance claim.
Consequently, your estranged child would be eligible to make a claim if he/she so chose, the court having regard to a number of factors, e.g. the claimant’s personal, financial and health circumstances, their relationship with the deceased, the size of the estate and the circumstances of the named beneficiaries.
Unfortunately, unless you transfer your assets to your intended beneficiaries before your death (and this can have adverse consequences both personally and financially), there is no way to completely safeguard your estate from an eligible claimant.
Nevertheless, the first step is to ensure your will has been accurately and proficiently prepared by a professional who can provide tailored advice about your personal situation.
Answer provided by Zeena Anthony-Qureshi, Senior Associate, Mellor Olsson
This article was originally published in The Advertiser on Monday 22nd June 2015.
Practice Area: Wills & Estates