As featured on TV show Inheritance Wars: What families need to know about inheritance disputes

In the series Amanda features as a a sounding-board, explaining the law and drawing on her own experiences to explain how things often go wrong for families, and how with the correct advice and guidance they can be resolved amicably. Here she recaps on some of the big talking points as well as explaining some common inheritance dispute misconceptions.

An estranged family member can contest a will in a number of ways, the main ones are ‘for lack of formal validity’. This means the will was not signed and witnessed correctly and therefore is not legally valid. Secondly for ‘lack of the requisite mental capacity’ on the part of the deceased, which means that the person who wrote the will was not of sound mind when doing so. You can also argue ‘undue influence’ on the part of a person who benefits from the final will, where that person has coerced the deceased into making his will. It is also possible to claim for “maintenance” from the estate, although if the challenger is estranged, this is often difficult.

The challenger must also benefit in the event that the final will is held to be invalid- ie under the previous will or under the intestacy rules. The intestacy rules are the position where there is no will- usually the estate passing to next of kin, although the situation is slightly more complex if there is a surviving spouse and children.

It is always better to deal with antagonistic family members with respect, decorum and an air of calm. Stoking fires through aggressive correspondence is never helpful. Bridging the gap through reaching out to the lawyers acting for the opposing family members in a professional manner is the best way to forge a settlement that everyone can live with. Sometimes court action is required, but it is best to try to reach a compromise in the interests of saving legal costs and attempting to keep family relationships together if at all possible. The parties will be attending the same weddings, christenings and funerals in the future, so this is the aim- although not always the outcome.

No a beneficiary does not always have to share with their siblings. Often a person is left a gift in a will by a godparent, neighbour or good friend. This has nothing to do with siblings. Surprisingly often a parent will choose to favour one child over his/ her siblings. This can be for various reasons, eg that child has been the parent`s main carer in old age; that child is more financially vulnerable; or that there has been a genuine estrangement from other children. In these circumstances there may be good reasons to defend a challenge by the siblings who have received less from the parent`s estate.

It is difficult to say how often families fight over inheritance. The figures in the Channel 5 documentary struck me as too high. (One-third of beneficiaries are unhappy with what they have received and 25% of them challenge the will). I have a jaundiced view because the unhappy people come to me; whereas those who are content stay quiet!

Only if you successfully challenge a will. As mentioned, this would have to be on specific legal grounds: incorrect completion of the paperwork when creating the will; a challenge on the ground that the deceased lacked the requisite mental capacity to make the will (the legal test here is very precise); that another person unduly pressured the deceased into making the final will; on the ground that the will is fraudulent or fraudulently obtained. This is a ground called “fraudulent calumny.” This is a rare but interesting ground of challenge. Essentially a person lied to the deceased about the person disinherited and the deceased believed the lie and cut that person out in reliance upon that mistaken belief. At RWK Goodman we successfully prosecuted a famous case on grounds of fraudulent calumny but this is rare in practice because the evidence is hard to obtain. A beneficiary under a will might see his/ her inheritance reduced if there is a successful statutory claim by a third party to “maintenance” against the estate.

“Winning” suggests that the case goes all the way to court. In practice less than 5% of cases go to a contested trial. So the vast majority settle by way of an agreed compromise, usually sorted between solicitors. That is always our aim. Of the remaining 5% that do fight all the way, naturally 50% win and 50% lose. At RWK Goodman we have a very slim failure rate indeed. We always strive to compromise claims and minimise risk and cost to the clients.

The challenger pays to challenge the will. Usually a compromise results in practice with the parties paying their own legal costs unless the estate is substantial, when sometimes the settlement involves everyone`s costs coming out of the estate. If it goes to trial, generally the “loser” pays the “winner`s “ costs as well as his/her own. There are specific legal exceptions when the costs might be ordered to come out of the estate.

Yes you do- the areas for challenge can be legally complex. In practice the evidence required is very specific and targeted and there might also be a need for expert evidence.

Lack of formal validity; lack of mental capacity on the part of the deceased; undue influence by a person against the deceased, coercing him/ her to make the final will; fraud or fraudulent calumny. There might also be grounds to challenge the will not for invalidity as such; rather there might be a claim for “maintenance” by a close family member or dependant of the deceased who has not been adequately provided for under the deceased`s will or by the intestacy rules. This is a statutory claim under the Inheritance (Provision for Family and Dependants) Act 1975.