Pitfalls in Probate
Pitfalls in Probate was the subject discussed in a recent episode of our webinar series for intermediaries.
Disposing of the body
Starting with the first task that falls to the executors, Paul spoke briefly about disposal of the deceased’s body. He observed that disputes over the body tend to be about the location of the burial or cremation and not about the means of disposal. No-one owns a body but it is the executors who have power to decide how it is to be dealt with provided, of course, they can agree. Executors can incur reasonable funeral expenses at the cost of the estate, but the mourners are not able to claim travel expenses for attending the funeral. If an intractable dispute arises the court can decide what happens, but Paul pointed out that it is better to avoid this expensive outcome. Testators addressing the subject when making their Will and being clear about their wishes can make disputes less likely.
Personal chattels and debts
Clear instructions were a common theme in the topics Paul addressed. He pointed out that most probate disputes are not really about money but arise from emotions stirred up by the bereavement, often dating back to childhood. Chattels (personal items such as pictures, books and jewellery) are often the focus of arguments, and costs incurred in settling these can be completely out of proportion to the value of the chattels. Testators being clear about what goes to who can help to reduce disputes. Similarly, if there are family debts the terms of these should be comprehensively documented.
Forfeiture and family provision claims
Rebecca Clarke spoke about a less common subject: forfeiture, the legal doctrine that a person who has unlawfully killed someone cannot benefit from their estate. This is a subject which has been in the news recently due to a MP’s campaign for individuals who abuse their spouses, causing them to take their own life, to forfeit their interest in the deceased spouse’s estate.
Both Rebecca and Geraldine spoke about claims made against estates under the Inheritance (Provision for Family and Dependents) Act 1975 which enables certain categories of individuals to claim “reasonable financial provision” from an estate if they believe that such provision was not made by the testator. Again, death can be a catalyst for such claims, and the incidence of claims by adult children is rising. Despite her success in a claim of this nature Geraldine pointed out that they are not easy, with the courts expecting to see “something more” to a claim than simply being a child of the deceased, such as a level of financial dependency.
Testators should be encouraged to leave written reasons for excluding someone from a Will and explain any major changes from previous Wills. Leaving a small gift in a Will conditional on not disputing it can sometimes head off a claim.