Inheritance Act Claim. Other side just ignoring solicitors letter.

[DaisyandSimeon]

Just that. They have been given 21 days to respond, but 6 weeks on and nothing. Our solicitor has emailed and will email again next week. Does our solicitor just go for a court date or attempt to get them to mediate.

@SeasonFinale

if you are the second spouse perhaps it also may be reliant in what capacity the deceased person held the property and whether the property was in fact paid for by the other parent of the deceased in this instance. Eg property paid for by father, father dies and leaves to mother, mother dies and leaves to children rather than 2nd husband.

How long was the claiming spouse married to the deceased.

They do not have to provide any evidence at this stage.

This is wrong.

Take the example - property paid for by father, father dies and leaves to mother, mother dies and leaves to children rather than second husband. In that example, the second husband would have a claim on the property and would generally receive at least as much as he would have received had the marriage ended in divorce. The fact that the mother didn't pay for the property is irrelevant.

If her first husband had wanted to ensure that the property went to his children, he should have given his wife a life interest in the property with it passing to the children on her death. That way her will would have been irrelevant and the second husband wouldn't have a claim as the property was never hers. But if the house is the mother's, it doesn't matter whether she bought it herself or inherited it.

@SeasonFinale How long was the claiming spouse married to the deceased.

The solicitor (and the law) considers it a reasonably long marriage.

They do not have to provide any evidence at this stage.

Yes they do. We have provided evidence of financial need and housing need, and as the defendents are making a needs based counter claim, they have been asked for financial evidence to support this.

Not sure if they are called 'the defendents' but I don't know what other term is appropriate. Opposition sounds very combative. Sorry

If they are the people who have inherited the property under the will they do not have to provide any evidence in this respect until proceedings are actually brought against them. No claim = they inherit. Claim = they defend your claim on the basis they have stated and at that stage provide evidence.

(@prh47bridge
yes sorry I wasn't more specific - my second very short paragraph referred to how long the claiming spouse was married to the deceased in the context of potential claim as regards what may have been awarded in a divorce).

@SeasonFinale

If they are the people who have inherited the property under the will they do not have to provide any evidence in this respect until proceedings are actually brought against them. No claim = they inherit. Claim = they defend your claim on the basis they have stated and at that stage provide evidence.

(@prh47bridge
yes sorry I wasn't more specific - my second very short paragraph referred to how long the claiming spouse was married to the deceased in the context of potential claim as regards what may have been awarded in a divorce).

They are all joint inheritors of the property (which is what is in dispute). They want it sold and the proceeds divided as per the will, but the will leaves the spouse with a tiny percentage which isn't adequate for any housing.

The whole point according to our solicitors) is that we want to avoid court proceedings and mediate a life interest and increased percentage. I thought all such cases try to avoid court? Without the evidence of finances for their needs based counter claim, are they then not defending the spouse's claim? Our solicitor is sure it will be settled via mediation, so surely the defendents must offer their defence? If they have a genuine and needs based defence to the claim, surely it makes sense to disclose this and therefore have the information to negotiate a settlement? Our solicitor has asked for financial proof of their claim and their solicitor has done the same (which we have provided in full) so I can see no sense in witholding their evidence and forcing us all into court. Surely a judge would take a dim view of a defendent who failed to provide evidence but forced a court case which wasted everyone's time and money? Particularly in light of the IA stated need for reasonable financial provision.

Perhaps that is their stategy and why their solicitor has not contacted us for 6 weeks despite a Part 36 offer and a 21 day deadline?

Surely their solicitor would have contacted us to say their clients have refused to provided financial evidence to support their defence and advised us to issue court proceedings to get them?

I think that would go down like a lead balloon in court.

I am personally involved in a separate claim. We have served our letter of claim with a summary of the evidence. We have received the defendants response to the claim, and it contains a comprehensive summary of their evidence. They have provided this without court 'proceedings' being issued, and are open to mediation.

Which is why I am confused @SeasonFinale saying the defence in the OP do not need to provide evidence?

No-one can tell you what their strategy is. However, unless they were dependent on the deceased at the time of death or living in poverty, their needs are unlikely to enter into it if this ends up in court.

@prh47bridge

No-one can tell you what their strategy is. However, unless they were dependent on the deceased at the time of death or living in poverty, their needs are unlikely to enter into it if this ends up in court.

One is 30 and married with a child and has a house with a mortgage and a working spouse. The other is 25, an accountant and owns their flat. The deceased was very generous to both of them, but the needs based defence seems to depend on not being able to afford Gym Tots and swimming and having to decide between the two. The bereaved spouse will have to leave their home of 12 years, which they have improved and paid all the bills for during that time, and move to a one bedroom flat. Also coming up to retirement with minimal pension. What a mess it is when someone doesn't consult a solicitor when writing a will.

The bereaved spouse will have to leave their home of 12 years, which they have improved and paid all the bills for during that time, and move to a one bedroom flat. Also coming up to retirement with minimal pension.

So your mum was provided for in the will and will be housed from the estate? Suspect this might make your case more difficult in court if you're pushing a needs based appeal. This may be why they are refusing to engage further.

From your OP, it seemed like she would be homeless.

@TokyoTammy Thank you for your contribution.
However our solicitor disagrees with your summary. I believe they are familiar with the inheritance act 1975 as they are specialist solicitors in the area of contentious wills. Unless solicitors lie to their clients in an attempt to gain funds in a duplicitous manner? Apparently the duty of the deceased is primarily to the spouse and providing reasonable financial provision entails providing them with a home and lifestyle they have been accustomed to during the marriage. Not a 1 bed flat. The 'divorce fiction' whereby assets are divided at least 50/50 is a starting point, but as the deceased is not requiring a property, the court can give more than 50%.

Courts priortise the needs of the spouse over those of the adult children because the Act dictates this.

Why ask a question and then knock back any suggestions with the comment that your solicitors are specialists? If they are so marvellous why are you asking people who know nothing about the facts of the case? It's a bit rude when people have tried to help to slap them down.

Good luck with your claim OP - not likely to be easy and obviously important. You sound confident of your case but it's unlikely to be cut and dried if the person didn't want to leave his house to you/your mum/your friend. He must have had his reasons.

Is this your brother who moved into his wife's home and paid the bills/running costs, but doesn't t have any record of that because he transferred cash to her? And an extension? They married later in life and he is nearing retirement?

Well good luck to you OP. You sound very confident.

Just remember they will have specialist legal advice too, who will have the facts/evidence from their side and will also be building a case. They may also have probate insurance in place to tackle any legal challenges, so may have deeper pockets than you think to push it to court.

Given the position you've outlined, I suspect they will push it to court.

@TokyoTammy

Well good luck to you OP. You sound very confident.

Just remember they will have specialist legal advice too, who will have the facts/evidence from their side and will also be building a case. They may also have probate insurance in place to tackle any legal challenges, so may have deeper pockets than you think to push it to court.

Given the position you've outlined, I suspect they will push it to court.

She has every right to be confident.

As I have said previously, the approach taken by the courts in cases like this is to award the spouse at least as much as they would have received if the marriage had ended in divorce. The alleged needs of the deceased's children only enter into it if they were dependent on the deceased at the time of death or they are living in extreme poverty. Neither is true, so their needs are irrelevant. This could be a negotiating strategy but, if they genuinely believe this, either their legal advice is poor or they are not listening to it.

Why ask a question and then knock back any suggestions with the comment that your solicitors are specialists?

The poster to whom the OP was responding was answering a question the OP didn't ask and was clearly wrong in law.

What's your actual area of legal expertise prh47bridge? you seem to post advice across a very broad range subjects.

@LadyLuLou

What's your actual area of legal expertise prh47bridge? you seem to post advice across a very broad range subjects.

FWIW Solicitors study most areas of the law during the degree course, and only settle on their specialisation once they have qualified, so its not unusual for them to have very wide experience in all areas. Bit like doctors.

@StormyTeacups

Is this your brother who moved into his wife's home and paid the bills/running costs, but doesn't t have any record of that because he transferred cash to her? And an extension? They married later in life and he is nearing retirement?

No

If they have taken out probate insurance and are relying on that to fund a court case, I have looked at the T&Cs and they have to declare they were unaware of a pending case under the IA. As we have emails starting very early on stating we intended to claim, they will be committing fraud, and we will not hesitate to bring this to the attention of any insurance bodies.

.

The issue here is that if your relative wants more they have to make a claim. Until such time as an actual claim is made the other party does not need to defend or counterclaim. At mediation they may choose to set out their case. It certainly isn't for their solicitor to tell your relative to issue! That decision is up to your relative and their advisers.

From what you have said above it looks as though mediation has not been suggested yet and yes that may be a preferable route to see if an agreement can be reached but if they won't agree or agree but then refuse to budge the only course would be to issue proceedings.

Was the small share in the property all that was left to the spouse or were there other assets too that you have not mentioned?

Was the small share in the property all that was left to the spouse or were there other assets too that you have not mentioned?
Yes, just a small percentage and a third of any remaining assets, but there are very minimal other assets. Not even enough to cover the case so far.
@SeasonFinale
The letter sent to the defendants set out our case, citing the Inheritance act, beneficial interest and proprietory estoppel and the facts including financial statements and a witness statement. I assumed that was a letter of claim? It does ask for more than the Will says. The solicitor hasn't yet applied to start court proceedings but has offered mediation, but has not officially started that route going yet. Is it court proceedings you are referring to? I don't believe I suggested their solicitor should instruct us?

Week 7 and still waiting

Before proceedings are commenced, the parties are required to act reasonably in exchanging information and documents relevant to the dispute. The aim is to avoid the need for legal proceedings by encouraging resolution of the dispute by other means
I found this on a legal website, and it seems to be where we are.

I am not sure of the legal terms and whether our communication was a 'letter before action/letter before claim' but it was the second letter sent, the first being to inform them a letter was to follow with all financial details. As above they have not replied or sent financial statements to support their position.

We also have reason to believe they are taking money from one of the savings accounts as they have accused us of taking £9000, which of course is untrue as they are the only people with access to these accounts.