Resolving family inheritance disputes - Your options

Losing a loved one is never easy, and an inheritance dispute can make things even more stressful and frequently causes a rift in family relationships. A dispute can lead to time-consuming court proceedings. However, there are other methods that can used to resolve the issue.

We look at the common causes of inheritance disputes, the valid reasons for contesting a will, and the many benefits of resolving disputes through alternative dispute resolution. We also look at when it may be necessary to take the matter to court. We will explore some frequently asked questions related to inheritance disputes.

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What are the common causes of inheritance disputes?

Inheritance disputes can be caused by a number of factors.

On the death of a relative a dispute can arise if one family member is left out of the will and others inherit. In the case of the death of a parent a dispute can arise if one or more sibling is favoured over and above the others. A dispute may also occur when all the children of the deceased are the benefactors and one or more sibling inherits more than others. Siblings not receive equal benefit from the estate is a common cause of dispute.

If the deceased dies intestate (no will has been made). The laws of succession apply, the deceased’s spouse will inherit automatically, or if there is no spouse, any children will inherit equally. There may be a relative who assisted or was close to the deceased who does not benefit from the estate who believes that the deceased would have made them a benefactor had they made a will.

Family dynamics are far more variable than in the past. Second marriages, step-children and other factors can lead to disputes between the deceased’s first family and their subsequent family.

Changes in family dynamics are a common cause of inheritance disputes. Relatives fall out and become estranged, after a will has been written. This can cause disputes between those who inherited and those who feel that they should have inherited if the deceased did not update their will.

What are the reasons for contesting a will?

There are several reasons that people may contest a will; all challenges must have a valid legal basis to contest a will in court.

A will may be contested on the ground that the deceased did not have the required mental capacity to draft a will, by reason of mental illness or a progressive neurological illness such as dementia. This is a reason for contesting the will. However, sound medical evidence must be produced and verified to support the challenge.

Another reason based on the mental capacity of the deceased may be that they did not understand the content of the will and that they agreed to something the implications of which they did not fully grasp. This may be the case if the deceased was very elderly or spoke a different language to the language in which the will was written.

One of the leading reasons for contesting a will is the claim that the deceased was subject to undue influence by another person or persons. For example, if the deceased was placed under pressure to leaving their money to a person through coercion. This is often by a carer or a relatively new partner.

In some cases, forgery may be suspected or fraud has occurred, in which case one party may accuse another of forging or fabricating the will of the deceased.

Another reason a will may be contested is when rectification is necessary, when a will has a clerical error that needs to be corrected in order for the actual bequests intended by the deceased can be carried out.

Resolving family inheritance disputes through alternative dispute resolution

Resolving a family inheritance dispute through alternative dispute resolution (ADR) is frequently a more cost-effective solution in comparison to a court case. It is also far less stressful and confrontational, enabling family relationships to be saved. Also, the whole matter is not exposed in a public open court.

Options like mediation and family arbitration also allow you to be more involved in the outcome, as you will be able to put your arguments forward yourself.

There are different types and methods relating to alternative dispute resolution. One of which is Mediation. The parties involved in the dispute will all be in the same room together with a mediator, whose role is to assist all parties to discuss the disputed issues calmly. A decision will be reached together, however, this is not legally binding but persuasive when put before a court.

You can read more about the benefits of mediation here.

resolving inheritance diputes

Another type of alternative dispute resolution is arbitration. This procedure is more structured and is used when the conflict is more extreme. The parties are not in the same room and a qualified arbitrator will hear all the arguments from all parties and they will make the final decision.

You can find out more about Giambrone’s arbitration and dispute litigation services here.

When is a court case necessary?

If you have exhausted all other methods to achieve resolution to the dispute litigation may be necessary. Should the issue go to court, you will need to instruct a solicitor and gather evidence of your claim or defence. On the appointed date your lawyer will present your case to and you may be called to give evidence. The judge will hear the evidence from both sides and a decision will be made by the judge as to the validity and legality of the claim. The decision will be legally binding.

Giambrone’s litigation team has considerable experience with regard to disputed inheritance claims and can provide expert legal advice anon the merits of your case and explain what information you will need to with regard to evidence to support your claim. Please click here to contact the wills and probate team.

Frequently asked questions

How do you divide inherited property between siblings?

The laws of succession allow for the assets of the deceased to be divided equally between siblings. If there is a will the deceased will have been a liberty to bequeath his or her estate in any way they chose, including bequeathing their estate in unequal portions to their children or bequeathing their estate to a third party who is unrelated or charity.

Can siblings force the sale of inherited property?

If more than one person has inherited property, all parties involved must agree to the sale of a property.

You can read more about resolving property inheritance disputes here.

Can a will be challenged before death or after probate?

Since a will does not take effect until after the testator has died, you cannot officially challenge a will before death. You can challenge a will after probate, though this will be more difficult and costly than if you challenge beforehand.

What happens when a will and a revocable trust conflict?

In the case of this happening, the revocable trust will take precedence over and above the will.

What is meant by a disclaimer of inheritance?

A disclaimer of inheritance is a deed wherein a beneficiary gives up their rights to inheritance whereuon it will then pass to the next beneficiary.

Can a will be contested on behalf of someone else?

Yes, it is possible to contest a will on someone else’s behalf, such as a child or someone with reduced mental capacity.

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