In 2011, research commissioned by the well-known charity Stonewall concluded that people over 55 who were in a same sex relationship were less likely to see biological family members on a regular basis. Over half of the people surveyed felt that their sexual orientation had, or would have, a negative effect on getting older and would make life more complicated.
In considering that research, it is perhaps unsurprising that we are dealing with an increasing number of enquiries and cases where the family of a deceased person are challenging the validity of the will because they left a significant proportion of their estate to their same sex partner and their family either did not know (or did not approve) of the deceased’s relationship.
A separate survey of 2,000 people conducted by Macmillan Cancer Support found that 42% of people over 55 had not made a will. In those circumstances, the deceased’s estate would pass under the rules of intestacy and where there is no surviving spouse or civil partner, the estate would pass to other surviving members of the family, perhaps leaving the surviving partner with no financial maintenance or provision. It is also possible that if the deceased did not want to upset their family, they may have left a will which excluded their partner. If that person was financially dependent on the deceased, this could have devastating consequences.
These cases can be difficult because they deal with a range of sensitive and personal issues, not only dealing with the death of a loved one but, in addition, having personal circumstances of a person’s relationship potentially scrutinised and analysed.
Validity challenges
Validity challenges may arise where the deceased has written a will which includes their partner, perhaps to the detriment of beneficiaries who were previously included in wills. These beneficiaries may not have been aware of the deceased’s relationship, either because they were not close or because the deceased did not inform them of that relationship. This may lead to allegations that the will is invalid due to coercion or undue influence by the partner over the deceased. Alternatively, there may be an allegation that the deceased could not have known or approved the contents of their will.
Regardless of the nature of the deceased’s relationship, in the UK everyone is entitled to dispose of their estate as they wish (known as testamentary freedom). Although the deceased’s choice may be unpopular, this does not make the will invalid.
In order to prove that the deceased was unduly influenced into changing their will, it is necessary to show that the influence was such that it overpowered the will of the deceased and that they were coerced into changing their will; it needs to be more than just persuasion. This can be very difficult to prove and there remain only a handful of successful cases. The court will look for evidence that the deceased would not have made the gifts without being subject to influence. In order to demonstrate that these were the wishes of the deceased, the beneficiary is likely to need to produce evidence that there was a loving relationship and the deceased would have wanted to leave the gift to them.
A deceased also has to know and approve the contents of their will and so, if the deceased leaves their entire estate to a partner who was not previously named in a will, there will need to be evidence that they knew and approved what the implications of that gift may be. If the will has been prepared by a solicitor, this is likely to be easier because the solicitor should have recorded the deceased’s reasons for wanting to dispose of their estate in a particular way. As per the above however, people over 55 may be reluctant to approach a solicitor and discuss their personal information. This may mean that the will is homemade and it will become more difficult to produce evidence from the deceased that this was their wish.
Inheritance (provision for family and dependants) Act 1975
Under this act, if you fall within a certain category of potential claimants, and you can show that the deceased’s will has not made reasonable financial provision for you, then you may be able to make a claim under the act. The court will consider a number of circumstances to come to their decision, and they have a wide discretion to make orders to enable a reasonable financial provision to be made. Under section 2 of the act, civil partners are entitled to bring a claim. However, what if you were not in a civil partnership with the deceased?
The act also states that any person, who immediately before the death of the deceased was being maintained, either wholly or partly by the deceased, may also bring a claim. This means that if you were in a relationship with the deceased and were being maintained by them, you may be entitled to make a claim against the estate. It would then take careful consideration of the applicant’s relationship and the extent to which they were being maintained, in order to fully consider what they may be able to seek by way of maintenance. Cohabitees may also have a potential claim under the 1975 Act if they have not been left reasonable financial provision
Both of the above claims will require examination of the facts and supporting evidence.
If the family of the deceased are accepting and aware of the relationship, it may be easier to settle these types of matters without having to issue a claim however, in circumstances where the other beneficiary’s entitlement will be reduced by any claim, and particularly if the family are not aware of the relationship, it is possible that any such claim will be contentious.
It is therefore important to seek advice as soon as possible if you consider that you may have a claim, or be faced with a claim, following the deceased’s death.
For further information, please contact Laura Phillips or a member of the Contentious Trusts and Probate team.
Latest blogs & news
Drag queens and activism: a story of political realness
When I told some of my friends I was writing a piece about drag activism, their reaction was almost unanimous…
"Oh, but, is there much to say?"
That's when I realised that drag queens, for many, are more synonymous with big hair and lip-syncing pop hits rather than political consciousness and activism. You can certainly understand the reason for this - we have been totally spoiled in recent years with the explosion of Ru Paul’s Drag Race around the world - the make-up, talents and confidence being a feast for the eyes (and the soul). But we cannot minimise the political importance of Mama Ru’s creation. Who could forget numbers such as “Shady Politics”; the discussions of gay conversion therapy while applying make-up; and Bob the Drag Queen describing his arrest during a 2011 marriage equality protest? Not to mention Nancy Pelosi sashaying into the All Stars season…
Coming out? How to support your friends and family members when they come out to you.
Coming out is an extremely personal journey and will be unique to each person. It takes a lot of courage to come out and a person may have to repeatedly do this in their personal and professional lives. Statistics show that 46% of people who identify as lesbian, gay and bisexual and 47% of people who identify as trans feel comfortable to discuss their orientation or gender identity.
When the arch of the rainbow actually casts a shadow on you.
How can you put the spotlight on intersectionality to remind others that, even within the LGBTQ+ community, not everyone is treated equal?
Are you proud of who you are, your journey and the person that you’ve become? Do you truly wear your heart on your sleeve? For some, being open and honest about who we are (which includes our gender identity or sexuality) does not come easily and can be extremely hard. It can be even tougher at work, and for those that hide their true self, the energy expenditure is endless. That survival cost of energy makes you less productive, or even worse still, it has a detrimental impact on your mental and physical health.
Spotlight on dementia: can you challenge a will despite the views of medical experts?
Alzheimer’s disease, the most common form of dementia, has been in the spotlight recently given a recent scientific breakthrough with the US approving the first new Alzheimer’s drug in 20 years. Light has also been shed on dementia and assessing testamentary capacity in the recent case of Hughes v Pritchard [2021] EWHC 1580 Ch. In this case, Mr Hughes, who suffered from moderately severe dementia was nevertheless deemed to have capacity at the time of amending his will by his GP, a view supported by a joint medical expert later instructed in the case. Despite this, his will was overturned by the judge on the basis that he did not have the requisite capacity to make the changes to his previous will, which were much more significant than the medical professionals, and indeed Mr Hughes, had appreciated.
The Conversations That We’re Forgetting to Have
I am a trans woman who has recently embarked on her transition. Having only taken my first steps on this journey, I am acutely aware when writing this that I have much to learn about myself, about being trans, and about the diverse LGBTQ+ family that I now find myself part of. However, there is one theme that I feel is important to discuss as we celebrate Pride in 2021.
Three years on, the UK Government is still ‘’dragging its feet’’ about banning gay conversion therapy.
Following on from my colleague Sameena Munir’s blog ‘’pray the gay away: cull conversion therapy worldwide’’, the issue of gay conversion therapy dominates contemporary conversations surrounding LGBT politics and legislation in the UK, but the Government has failed to deliver on its promise to ban it.
"They will say I’m pushing an agenda. But the truth is, I am.” - The rise of queer artists and the importance of visibility
For two weeks during Pride month, Kingsley Napley are publishing a series of blogs to celebrate Pride and highlight LGBTQ+ issues from home and abroad.
It’s been 9 years since R&B artist Frank Ocean headed off rumours about his particular pronoun usage in the album Channel Orange by posting on Tumblr that his first love had been a man. Since then, the momentum for the openness and success of queer artists has continued to gather pace, and LGBTQ+ representation in the arts and mainstream media is as wide as it has ever been. This rise has however raised important questions about pigeonholing queer artists, and perhaps most interestingly whether they must always shoulder the responsibility of ‘pushing the agenda’.
Visibility, Unity and Equality: out and proud in the legal sector
In February this year, I attended a virtual talk held by the InterLaw Diversity Forum for LGBT+ History Month. The speakers featured individuals working in the legal sector and each discussed their experience of coming out as trans or non-binary at work. It feels an apt lesson given this year’s Pride theme: Visibility, Unity and Equality.
When does the clock start ticking on trustees’ negligence?
Matthew & Others v Sedman & Others [2021] UKSC 19
The Supreme Court recently handed down a judgment dealing with time limits in a “midnight deadline” case. The claim was brought by new trustees and beneficiaries of a will trust against the former professional trustees. The claim involved allegations of negligence against the former trustees, along with breach of trust and breach of contract.
Things not to say to same-sex parents
In January 2020, I was fortunate enough to give birth to a beautiful, healthy baby boy. As far as I know, I am the first partner at Kingsley Napley (although certainly not the first employee) who has a baby who is lucky enough to have two mums. News of my pregnancy was met with overwhelming support from my colleagues. That support continues to this very day, and my wife and I remain truly grateful for the kindness that has been shown to us. However, since falling pregnant I have learnt that not all workplaces are as supportive to same-sex parents as mine. The concept of two mums or two dads starting a family is something that some people still struggle to get their heads around. So this year, for our KN Pride blog series, I have decided to explain the questions, that speaking from my own experience, it is not helpful to say to same-sex parents.
Looking out for financial abuse of the vulnerable
Financial abuse of older and vulnerable adults is sadly becoming more prevalent
You gotta’ have faith…in ADR
My previous blog examined whether Kenny Goss, the ex-partner of George Michael, may be entitled to a provision from the late singer’s estate, notwithstanding the fact that their relationship had broken down in 2009 (seven years prior to Mr Michael’s death). It was reported at the time that Mr Goss was seeking an award of £15,000 per month on the basis that Mr Michael had been financially maintaining Mr Goss at the time of his death. Pursuant to the Inheritance (Provision for Family and Dependants) Act 1975, Mr Goss made an application for reasonable financial provision from Mr Michael’s estate because he had not been left anything in the singer’s will.
Inheritance claims by adult children
In recent years the courts have seen a significant number of claims under the 1975 Act bought by adult children. This week it has been widely reported that the two adult daughters of Tony Shearer, a high profile banker and finance governor of a well-known public school, have failed in their attempt to bring a claim against their late father’s £2.2 million estate. Mr Shearer made no provision in his estate for his daughters leaving the majority of his wealth to his second wife.
What is required to show dishonesty in the case of a professional trustee?
Examining the impact of Sofer v Swiss Independent Trustees SA on practitioners in England and Wales.
This article was first published by STEP, December 2020: Katherine Pymont, 'Moments of Truth', Trust Quarterly Review (Vol18 Iss4), pp.36-41
Whoever thought Will forgery would be easy?
Two recent decisions relating to forged wills have highlighted what evidence will be sufficient for a court to make a finding of forgery.
Contentious Trust and Probate Quarterly Round-Up: Q4 2020
This quarterly contentious trust and probate litigation update provides a summary of a cross-section of reported decisions handed down in the courts of England and Wales in the period October 2020 - December 2020.
Beneficiaries in the dark: what can you do to obtain the information you need?
Beneficiaries often have questions and concerns over how the estate of a loved one is being administered but are sometimes kept in the dark by personal representatives (PRs). Under section 25(b) of the Administration of Estates Act 1925 (AEA 1925) PRs can be required by the court to provide, on oath, a full inventory of the estate and an account of what steps they have taken to administer an estate.
Leaving a legacy to charity: avoiding a will construction claim
The High Court has recently given judgment in the case of Knipe v The British Racing Drivers’ Motor Sport Charity and Ors [2020] EWHC 3295 (Ch), a summary judgment application concerning the construction of a will of a deceased racing driver, Mr Barrie Williams, who had sought to make several bequests to charity but the names of the organisations had not been correctly recorded.
When can a Will be rectified? Barrett v Hammond (2020)
One of the questions we are often asked is whether an individual’s will can be amended after their death if it doesn’t reflect their intentions. This is sometimes possible under a process known as rectification, although the circumstances in which rectification is available are limited. A claim for rectification was recently considered by the court at the end of 2020 in the case of Barrett v Hammond & others.
Did George Michael have the freedom to exclude his ex-partner from his will?
It has been alleged that the ex-partner of George Michael, Kenny Goss, may be considering issuing a claim against the singer’s estate. Goss was excluded from the singer’s Will but purportedly claims he is entitled to a monthly allowance of £15,000 as the singer provided this monthly allowance to him before their relationship broke down in 2009.
Share insightLinkedIn Twitter Facebook Email to a friend Print