The Hunted and the Hunting - claims to deceased estates

by Rebecca Harridge

It was widely reported in the press this week that heir hunters had tracked down a young Indonesian person who was entitled to her deceased father’s estate in England.  The estate contained real property in the UK and a collection of unique and fascinating Asian artefacts that the deceased had collected from a lifetime of travel.  There have also been a flurry of reports about successful claims against deceased’s estates by individuals who did not need to be hunted down as rightful heirs but who have exercised their rights in their belief they are the rightful heirs of the deceased.  We are frequently the first port of call in both scenarios.

So how do either of these claims succeed?

The Hunting – claimants against estates

In the UK we have testamentary freedom which means that we are free to leave our assets to whomever we choose upon our death.

The Inheritance (Provision for Family and Dependants) Act 1975 allows certain categories of people to make a claim in the courts against a deceased’s estate where they believe the deceased did not leave reasonable financial provision for them. The usual time limit for making a claim under this Act is 6 months from the date of the Grant of Probate and the categories of people who can claim are as follows:

1. a spouse or civil partner;
2. a former spouse or civil partner;
3. a child of the deceased (including adult children);
4. anyone who was treated as a child of the deceased;
5. anyone who was being maintained by the deceased at the time of the deceased’s death; or
6. a cohabitee who had been living with the deceased as a spouse or civil partner in the two years prior to death.

If an applicant falls into one of the eligibility categories above, then the court must assess what provision (if any) was made for them in the deceased’s Will or intestacy; whether they should intervene and make a financial provision and finally what type of provision would be appropriate. The question of what is considered reasonable differs depending on the category of applicant but in all cases the court applies an objective test of reasonableness.

The court has wide discretion when making an order in favour of the applicant and can award a lump sum or periodic maintenance payments from the Estate. This ultimately affects the other beneficiaries of the Estate whose shares will be reduced by the payment to the applicant.

The success of these recent claims highlights the flaws with testamentary freedom and individuals should give careful consideration to potential 1975 claims when drafting their Wills to reduce the likelihood of a successful claim on their death.

The Hunted - Heir Hunters

We are often requested to assist executors or family members to find missing relatives or heirs of intestate estates.  Where we are acting for an estate and we are not able to locate certain heirs through our own means we will often work with qualified probate genealogists to find these missing individuals and reunite them with their inheritance.  We would strongly advise anyone who is trying to locate a missing heir to use a solicitor to contact a reputable probate genealogist to find missing heirs.

At LBMW, we regularly advise clients both on hunting for heirs and on potential 1975 Act claims.  We advise our clients about the risks of potential claims against their estates when drafting Wills.  We also advising applicants on their likelihood of making a successful 1975 Act Claim against an estate and advise executors and beneficiaries on the consequences of a 1975 Act Claim against an estate.

If you would like to discuss anything set out in this article then please contact a member of the private client team. Rebecca is a solicitor within the private client team and deals with all aspects of private client law.