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Joshua
Joshua, Lawyer
Category: Law
Satisfied Customers: 29202
Experience:  LL.B (Hons), Higher Prof. Dip. Law & Practice
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I don't know if you remember me, but I am the American who

Customer Question

Hi Joshua: I don't know if you remember me, but I am the American who was married to the Brit for 16 years. She died before divorce proceedings were complete. I have obtained a copy of her will, which was granted probate on the 7th of May. The will includes this statement: "I wish to record that I exclude my Husband ***** ***** Eck from any claim under this will." I wish to know if I still have strong legal grounds to bring suit against her estate, whose declared value (according to the grant of probate) is £181,254.00 gross, £161,759.00 net. I have attached both the will and the grant of probate. Thanks, Scott
Submitted: 15 days ago.
Category: Law
Expert:  Joshua replied 15 days ago.

Hello again and thank you for your question. My name is ***** ***** I will be very pleased to assist you. I'm a practising lawyer in England with over 15 years’ experience. Please be aware that although I will endeavour to reply to you promptly, I am also in full time private practice and so I may not be available to respond immediately and it may also take me a few minutes to prepare a reply. The site will notify you as soon as I respond. I look forward to working with you to answer your question fully.

I do recall most of what we discussed though you will hopefully forgive me in that I cannot recall the reason you were seeking to make a claim. Are you able to kindly remind me In this respect?

Customer: replied 14 days ago.
I was the monied spouse and the sole provider in the marriage, and there is a piece of marital property in Bournemouth that I paid for in full which is worth in excess of £125,000. But because I never established residency in England, my name is ***** ***** the deed. Do I have a claim?
Expert:  Joshua replied 14 days ago.

Thank you. the provision in the will would make a claim against the estate of a lack of provision more difficult in respect of certain types of claim - e.g. lack of knowledge and approval of the will etc. it would not preclude a claim under the inheritance act as this cannot be excluded.

However, from what you say, you would not be making a claim for lack of provision in relation to the estate but rather a claim for breach of trust against the estate - i.e. your spouse owned property on a resulting trust for you (obviously you would need to prove that you paid for the property as you describe and that these monies were not a gift) but assuming this can be satisfied, your claim is as above rather than a claim for lack of provision therefore, the contents of the will are entirely immaterial is if proved, the property in question does not form part of the estate in the first place and therefore does not devolve under the terms of the will

Customer: replied 14 days ago.
Thanks for that, Joshua. In your experience, and in regard to case law, would I be entitled to half of the value of the marital property if I can prove that all monies used to purchase the property came from me? What does the law say about that, and would I have a 60% chance or better of winning such a case.
Expert:  Joshua replied 14 days ago.

The problem you have is that a presumption of gift can arise as between husband and wife. Accordingly the burden would be upon you to prove that the sum was not a gift. If you cannot do so then you would need to consider whether a claim against the estate would be more beneficial where you may be able to claim a circa 50% share of the estate.

This is a question on which you would need to seek detailed advice following a full perusal of the circumstances and evidence. If the latter is contemplated it is important not to miss the 6 month window to make a claim following grant of probate. If Probate has not yet been applied for then you may wish to consider entering a caveat to prevent probate

Customer: replied 14 days ago.
Probate has been applied for and granted as of May 7th of this year. If I bring a suit against the estate, what kind of suit would it be? And what kind of solicitor would I need? Here in the USA, I would need an estate attorney.
Expert:  Joshua replied 14 days ago.

So you will need to ensure that you do not miss the 6 month deadline in the event you need to consider a claim against the estate as opposed to a claim for breach of trust for which this deadline does not apply but for which you may need to prove the money was not a gift. For now it is best to assume the deadline does apply.

A claim against the estate would be brought under the Inheritance Act for reasonable financial provision most likely in view of the contents of her will which will likely make other grounds more problematic

Customer: replied 14 days ago.
I have attached the will and the grant of probate. The clause of the will that concerns me is # 6.2 where she states "I wish to record that I exclude my Husband ***** ***** Eck from any claim under this my Will."
Would you recommend that I pursue a claim? Or let it go?
Expert:  Joshua replied 14 days ago.

I cannot make a recommendation I regret. However I cannot see that it would preclude a claim on the basis discussed above. I would suggest you consider seeking formal representation to assess the quality of your claim