BOB has been estranged from his eldest son, following a physical altercation which occurred on Christmas Day, 20 years ago.
When Bob decides to make a new Will, he consults a solicitor regarding his son’s rights to claim inheritance.
He is informed that despite the lengthy estrangement, his son can still make a claim against Bob’s estate.
This is known as a Family Provision Claim.
Bob asks whether giving his son a nominal amount of money under his Will, can prevent a claim.
He is advised that doing this may in fact have the opposite effect.
The son would need to be informed of Bob’s passing and ultimately, Bob’s executor would need to obtain the son’s bank details and transfer the small amount into his account.
This could provoke a claim.
If, however, the son receives nothing under the Will, he does not need to be contacted and he has 12 months to make a claim.
If he does not make a claim, he would need to seek leave to apply “out of time” and demonstrate sufficient reasons to the Court.
Bob is advised to appoint an appropriate executor to defend or compromise a claim, if it is made and to leave appropriate ammunition for his executor to use if necessary.
Commonly referred to as a s100 statement, such ammunition can take the form of a Statutory Declaration or alternatively, a hand-written letter, which in some instances can be more persuasive if the matter proceeds to determination by a Judge.
The statement need not be overly lengthy and should detail “disentitling conduct” with reference to factual observations.
It is not possible to stop a biological child making a claim against your estate unless a “release” is approved by the Court during your lifetime.
This would normally require the payment of a sum of money to the child and the payment of their legal costs.
The process is expensive and the Court can refuse the application if it is not satisfied that it is “just and equitable”.
This fictional column is not legal advice.
By Manny WOOD, Solicitor
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