How to claim against the estate: A widow included in her husband’s will receives no benefit from the estate

The former England football captain and Blackpool stalwart Jimmy Armfield, who died in January this year, has left £214,000 in his estate as revealed by the grant of probate. However, his surviving wife, Anne, will receive no benefit. Ed Stanley, director at Harrison Drury, explores the case further

Jimmy Armfield left £214,000 in his estate and while in his will Mr Armfield left his estate to his surviving wife, Anne, he also made several cash gifts to other people.

The rules applied to estate administration mean that the executor must first pay off all liabilities, for example funeral expenses, debts and legal costs.  Next to be paid in priority are the individual cash legacies. Then the executor can deal with what is left – the residue of the estate.

However, in the case of the Armfield estate, the sum of all of the cash gifts – £236,000 – exceeded the overall amount in the estate meaning that there was nothing left for Anne. So, even though she was the sole beneficiary of the residuary estate she will not receive anything.

Sadly, this is not an uncommon situation. So, if the will is valid, what can a surviving spouse or any other residuary beneficiary do to try to put matters right?

The beneficiaries under the will can agree to change the way the legacies are paid

There are options in a situation like this. If the recipients of the cash gifts – assuming all are adults with capacity – are in agreement they could agree to vary the terms of the will, so their cash gifts or part of their cash gifts are diverted to the surviving spouse or civil partner.

The parties can agree between themselves what would be a fairer distribution of the estate. Typically, this may be done by those parties affected entering a Deed of Variation.

If some of the parties do not agree, then as long as their share of the estate under the will is not affected their consent is unlikely to be required.

If any of the parties are under the age of 18 or otherwise do not have capacity and their share is potentially affected, the consent of the court on their behalf will be required before any variation can have legal effect.

Any variations that are required to be effective for tax purposes must be completed before the end of two years following the date of death.

The law can step in to re-distribute the estate

Failing the co-operation of the parties, then a remedy is possibly still available. The disappointed spouse or civil partner may well have a claim for “reasonable financial provision” to be made for them by the estate under the Inheritance (Provision for Family and Dependants) Act 1975.

Unless, at the date of death, there was in force a separation order and the separation was continuing, the standard of reasonable financial provision will be such financial provision as it would be reasonable in all the circumstances of the case for a husband or wife (or civil partner) to receive, whether or not that provision is required for his or her maintenance.

Different rules apply where the parties may have been in the process of a divorce.

What does the court consider when dealing with a claim?

The court will consider:

• the age of the surviving spouse or civil partner
• the duration of the marriage/civil partnership
• any contribution to the care and welfare of the family and the home
• what the spouse or civil partner could have expected to receive had the marriage or civil partnership been ended by divorce or dissolution and not by death.

What can the court award to the surviving spouse or civil partner?

If satisfied that ‘reasonable financial provision’ has not been made for the spouse or civil partner, the court has power to make an order for one of or a combination of the following:

• payment of a lump sum
• periodic payments
• the transfer of property, typically but not always the matrimonial home
• the settlement of specified property into trust for the spouse or civil partner
• the variation of an ante or post-nuptial agreement
• a variation of the terms of the will

What does ‘reasonable financial provision’ for a spouse or civil partner look like?

‘Reasonable financial provision’ means such financial provision as it would be reasonable in all the circumstances of the case for a spouse or civil partner to receive, whether required for their maintenance.

This can include the provision of a capital nature, i.e. provision that is not merely limited to providing for their regular income needs.

What about the other beneficiaries?

The court must look at several factors. One of these is the financial resources and financial needs that any beneficiary of the estate has or is likely to have in the foreseeable future.

Does the spouse of civil partner have to go to court before they can obtain a legal remedy?

In short, the answer is no.  The courts are very keen to encourage parties to resolve claims without recourse to litigation. There are numerous ways to achieve this.

One way is mediation which is often seen as being much less expensive and acrimonious than litigation.  The parties are encouraged to come up with suggestions and solutions with the assistance of a mediator.

What if the residuary beneficiary isn’t the spouse or civil partner?

The Court treats non-spouses differently.  In fact, there are only a limited number of categories of people able to claim under the 1975 Act.  It is not possible to set out here the full extent of the way the court deals with these claims.  If the disappointed residuary beneficiary does not fall into the designated categories, then they may still have a claim but by way of a different legal remedy.

Beware of time limits

A would-be claimant has only six months starting from the date of issue of the grant of probate in which to bring the claim at court.  This time can be extended, though only with the consent of all parties or by court order.

It is good practice to alert the executors as early as possible of an intended claim.  Amongst other benefits, this should prevent the executors from making distributions of cash and property from the estate until the claim has been resolved.

So, what other remedies might be available?

Harrison Drury can look into other areas that may lead to potential remedies being available including but not limited to:

• The validity of the will – did the person making the will understand how it would work in practice, that is by leaving cash gifts that could wipe out the residuary estate?
• Whether there was negligence on the part of the will drafter and whether the will drafter owed a duty of care to the residuary beneficiary and may therefore be liable to that beneficiary in damages.
• Whether the person making the will had capacity at the time.

Ed Stanley is an expert in contentious wills and probate. He has been involved in many cases across the country, representing adult and infant children and spouses who have been excluded from a deceased’s estate, or for whom insufficient provision has been made.

If you would like more information or advice on contesting a will or an estate, please call Ed on 01772 258321. Harrison Drury are committed to getting you the best legal support in the North West.  With offices in Lancaster, Preston, Kendal, Clitheroe and Garstang.