Growing disputes over asset distribution amongst relatives

The number of children challenging their inheritances in court has grown. 116 was the number of cases seen by the High Court in 2015 that involved children contesting the estate left by their parents, an 11% growth from the previous year.

One of the main causes is growing property prices, according law firm Hugh James. Describing this correlation is Amelia Murray, who explains that as property increases in price similarly does the incentive for children to contest how assets are distributed. The family unit is also becoming more complex, with more relatives feeling as though they should also receive benefit in some form.

The Telegraph’s Senior Personal Finance Analyst continued: “Because we are now living longer, it is becoming more common for parents to die when their children are middle-aged and assumed to be comfortable financially,” says Murray. “If their children do not need help, parents may be more likely to make alternative arrangements for the distribution of their assets – to friends and charities, for example.”

Approximately 27 million UK adults have not drawn up a will. Their estates therefore will be distributed according to intestacy law and potentially far from their intended wishes. Under this law, only partners that are married or in a civil partnership at the time of death are eligible to the inheritance of the deceased, along with those who may have separated prior to death. For those who cohabit and have never been married, the rules do not necessarily apply in the same way – automatically they are not entitled to anything. This only differs if any bank accounts or property is jointly owned. For married couples, if children of any generation are present, the surviving spouse is entitled to the first £250,000 plus 50% of the rest of the estate.

If there are children but no partner present, the estate will be divided equally between them. This applies to children from all of the deceased’s relationships as well as those which have been legally adopted. Step-children however are unlikely to receive anything if provision of them has not been made in a will. If a child has died, the estate may instead go to a grandchild or great-grandchild. Any children will only receive inheritance when they turn 18, or either marry or enter a civil partnership prior to this point.

Where there is no surviving partner or children, the rules of intestacy have a strict order in which the estate is to be distributed. First is surviving parents, then any siblings. Beyond that any half-sisters or brothers and then onto their children if they have passed away. Surviving grandparents are next in line and finally onto any aunties and uncles. If no surviving blood relatives remain, the estate is passed on to the Crown.

The potential outcome of failing to make a will could mean the estate is distributed in way you would not wish upon death.

Complexities surrounding wills are however common, a theme which can be illustrated by the recent case involving the will or wills of The Estate of William Joseph Courtney [2016] IEHC 318 (18 June 2016).

Owning properties in both Ireland and England, Courtney made a will in 2007. Within this, he awarded all of his Irish property to his wife – five from eight shares – and the remaining three shares to his sister. The remaining amount was left in trusts for his respective nephews and nieces. This will, he stated, was only in relation to his Irish property as England was largely his place of residence.

Four codicils to the will were executed in his solicitor’s office with validity not being an issue in regards to any of them. In September of 2013 and shortly prior to his death however, he made another will. This contained a clause which revoked any previous wills or codicils. Further, it stated that he intended to leave his London home to his wife as well as his current bank account proceeds. The query put forth was thus whether the will made in 2013 revoked the one made previously. This one made no reference to the Irish properties and contained no residuary clause. Thus if it had been valid, Courtney would have passed away intestate in regards to the entirety of his Irish estate.

In this instance, general intestacy law would mean his widow would have been due the inheritance. However, she had sworn an affidavit in which she stated the deceased had not intended to revoke the previous will which encompassed the Irish property.

The relied upon extrinsic evidence to suggest that Courtney had not intended to rescind the will written in 2007 and the evidence supporting this, was firm. A factor which Herbert J stated weighed heavily upon his mind was the level of complexity of the Irish will and thus the time dedicated to it. Similarly in support was Courtney’s creation of several wills confirming disposal of his Irish property through express disposition, an intention far removed from the property being at intestacy law’s mercy.

Although the additional will in this case was homemade, the very fact it was brought to court indicates the level of clarity needed to be adhered to where will writing is concerned. Even if a will – or several – have been created, the individual’s estate is certainly not guaranteed to be distributed as they may have intended.

Read more stories

Join over 6,000 wills and probate practitioners – Check back daily for all the latest news, views, insights and best practice and sign up to our e-newsletter to receive our weekly round up every Friday morning. 

You’ll receive the latest updates, analysis, and best practice straight to your inbox.