Articles | Attempts by testators to avoid post death claims 

Bill Dixon, a partner in FSP’s inheritance and trust disputes team, considers whether attempts to avoid claims against a will by getting rid of assets before death can be challenged.  

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Bill Dixon

Bill Dixon

Under English law a testator is normally free to leave their assets under their will as they wish. There is one exception. Under the Inheritance (Provision for Family & Dependants) Act 1975 the court has a discretion to vary what has been left under a will. This can happen where an individual has died without making fair and reasonable provision for certain categories of people – such as spouses or former spouses, children or dependants. A claim for financial provision can then be made under the 1975 Act when the court will take into account the financial resources and needs of the applicant, the size and nature of the estate and a number of other factors.

The focus is on the property left under the testator’s will. However, what if a testator has deliberately tried to bypass the 1975 Act by giving away assets while he or she was still alive? This is dealt with by section 10 of the 1975 Act. Under section 10 if in the six years leading up to the death of the testator the testator has disposed of assets in order to defeat an application for financial provision under the 1975 Act then the court can intervene. The court can order that those assets are actually treated as being part of the estate. By being treated as part of the estate, they would then be available for redistribution to claimants for financial provision. However to bring a claim under section 10 the dispositions have to have been for less than full valuable consideration (a gift being an obvious example of this).

One example of section 10 in operation is a 2015 case called Dellal v Dellal. A wealthy businessman died leaving all his £15 million estate to his younger wife. She got everything. Normally she would not have had a claim under the 1975 Act. However, she was expecting an estate worth much more than this and so she brought various claims including a claim under section 10 against a former wife, children and other family of the husband claiming that her husband must have disposed of his fortune to them while he was still alive (ultimately, the case settled before trial).

If you need advice on the 1975 Act please contact Sue Baker or Bill Dixon at FSP.