Families at war

By MICHAEL CLARKE
Updated:

 

WHEN 90-year-old Texan oilman J. Howard Marshall left the majority of his $1bn fortune to former-Playboy model and wife of 14 months Anna Nicole Smith on his death in 1995, his two sons were understandably unhappy.

Anna Nicole Smith

One son saw his expected inheritance slashed, while the other was cut out of the will altogether following a family business dispute. A lengthy and costly legal battle ensued which to this day has not produced a clear verdict.

Although this is an extreme example, it is a situation many families find themselves in following the death of a relative.

According to Margaret Windram, a partner with law firm Thomas Eggar, the number of will dispute cases is proliferating. 'People tend to have more money today due to house prices shooting up so there is more at stake for most families. Also, estates tend to be more complicated than they used to, with second marriages, step-children or other dependants all making claims.'

The period after a relative's death can be highly emotional, leading to rash decisions and over-reactions, but where there is a genuine suspicion of foul play or wrongdoing it is possible to challenge a will.

There are six types of people who can contest a will – the spouse, a former spouse who hasn't remarried, children, step-children, a partner who lived with the deceased for more than two years, or any other dependants.

If you are unhappy with the terms of a will, in the first instance it is advisable to seek a caveat to stop the assets of the estate from being distributed. This caveat lasts for six months, but is renewable, and can lead to disputes being resolved before they reach the court stage.

Margaret Windram says: 'Families get a chance to talk, maybe iron out their difference and see where they can move forward. Legal action is costly so it can be best for both parties if it is avoided.'

It is worth noting that there is no guarantee of successfully contesting a will and the legal costs involved can run into thousands of pounds. Therefore, it is important to weigh up whether a claim is realistic or simply a response to damaged pride.

If an agreement cannot be reached during the caveat stage there are two main grounds on which to contest a will - its validity or financial dependency on the deceased.

The majority of cases tend to focus on the former and can include doubts about the mental capacity of the testator – the person making the will - concerns over undue influence placed on them at the time of making the will, or a lack of knowledge or approval from the will maker.

A court will assumed the will is valid, so the onus is on the challenger to provide evidence that suggests otherwise. If the court decides there is doubt, the burden is then on the party that wants the will to proceed in its existing form to prove it was completed correctly.

The 1975 Inheritance Act provides another route for redress. Where a relative was financially dependent on the deceased at the time of death, that person has a right to claim on the estate if they are left out. However, if their challenge is successful it does not necessarily mean they will receive a lump sum payment; it is more likely the court will grant maintenance.

If you want to avoid family squabbles following your own death you could follow the example of singer Frank Sinatra. His will included a clause cutting the inheritance of anyone who dared to challenge it.

• Thomas Eggar: 0870 160 1300

Most watched Money videos