I will inherit £25k while my younger brother gets £5m – can I fight this?

I have had a difficult relationship with my father for over 15 years. I moved out of the family home and set up home with my partner with whom I now have a family.

All communication ceased with my father and we have barely spoken since that time.

My grandfather owned a significant property portfolio built up over his lifetime which was left to my father nearly 10 years ago.

It appears that my father has since completed a ‘deed of variation’ and passed the entire portfolio (worth in excess of £4million) to my younger brother.

My brother already lived in one of the portfolio properties and it seems that the remaining properties (several residential and more than a dozen commercial) have all passed to him in accordance with the deed of variation.

My brother also worked for my grandfather and managed all the properties on his behalf. I know he only received a fairly low salary for this work but this was offset by the fact that he paid a token rent for the house he occupied.

From what I understand I have been gifted a sum of only £25,000 in father’s will whilst my younger brother inherits most of the remainder which I expect to be in the region of £1million.

I feel aggrieved that my potential inheritance is going to be a mere £25,000 while my brother will likely receive £975,000 (before any inheritance tax) from my father’s estate in addition to the £4million in properties he’s already been gifted.

I suspect that my father completed the deed of variation in 2014/15 with the intention of both trying to deplete the value of his estate to avoid inheritance tax but also to ensure that if I contest the will after his death then there is less value in the residual estate.

Our relationship is still difficult so my father will not engage in any face to face discussion on the topic and has told me it’s none of my business when I tried to raise the subject recently when I saw him at a family party.

Is there anything I can do to challenge the deed of variation which gifted the £4million of property assets to my younger brother?

And if yes, can I challenge now or only after my father’s death? And is there any time limit on such a claim – is it seven years from the gift?

If I contest the will after my father’s death then can the value of the properties gifted under the deed of variation be brought back into the value of the estate?

I have tried to read up on this topic, however, it appears that my own financial circumstances might be taken into account in terms of any such claim?

Could the fact that I have worked hard and earned a reasonable income, bought my own home in conjunction with my partner and become financially stable actually work against me in any such assessment of circumstances?

Tanya Jefferies, of This is Money, replies: This is a complicated inheritance situation involving three generations of your family, a property business, two wills and a deed of variation – and an awful lot of money is at stake.

It’s highly likely there are details you have not included, despite the lengthy account you have given, which could be significant in this case.

We have asked a lawyer who is very experienced in this area to give you some general guidance, but we have to echo his remarks about the desirability of getting individual legal help.

Daniel Winter, a partner at Nockolds and head of its wills and trust disputes team, replies: I must start by saying that disputes involving wills and inheritance invariably involve very complex legal issues.

It is impossible to provide anything more than basic general comments without requiring more detail than is available from your question.

Therefore I recommend that you seek full legal advice from a specialist in contentious probate law. The Association of Contentious Trust and Probate Specialists has a list on its website here.

Can you challenge the deed of variation?

You state that your grandfather’s property portfolio was left to your father nearly 10 years ago, and a deed of variation was completed to pass it on to your brother.

A deed of variation is an instrument by which one or more beneficiaries of a deceased person’s estate voluntarily surrender their entitlements under the deceased’s will or the intestacy rules in favour of someone else.

If the deed of variation is made within two years of the deceased’s death and meets other conditions, it is treated for inheritance tax and some capital gains tax purposes as if it had been made by the deceased.

Such deeds can sometimes be beneficial to reduce the liabilities that would otherwise be paid by the estate, for example if the deceased’s wishes expressed in his or her will were not constructed as efficiently as they could have been in relation to tax.

In this case, your grandfather’s property portfolio would have been subject to inheritance tax.

Your grandfather intended to pass this to your father, and so on his subsequent death the portfolio or what was left of it, along with the rest of your father’s estate, would be subject to a further round of inheritance tax before being passed on again.

By skipping the middle generation with a deed of variation, your father has saved a potential future inheritance liability in relation to the portfolio.

You have not mentioned any factual background that might point to your father suffering from any condition that may have affected his mental capacity at the time the deed of variation was made, or of anyone else exerting undue pressure or influence on him so as to overbear his free will.

Consequently, unless the deed of variation is defective in some way in the formalities of its creation, it is unlikely you will have any recourse to challenge it. 

Can you challenge your grandfather’s will, now or after your father’s death?

There are two distinct types of claim that might be relevant to your circumstances, which are:

– A challenge to the validity of the will; and

– A claim for reasonable financial provision.

In order to challenge the validity of a will, you would need to establish one of four grounds.

1. The person making the will lacked ‘testamentary capacity’, which refers to their legal and mental ability at the time.

2. They did not sufficiently know or approve the content of the will.

3. The will was executed as a result of undue influence or fraud.

4. There was a failure to observe the proper formalities of making a will, for example the signature and witnessing requirements.

You have not mentioned any factual issues relating to your grandfather that might give rise to one of these grounds, but if there are you should obtain further legal advice.

There is no specific limitation period applicable to will validity claims, but there are general principles that mean that delay or acquiescence may be an obstacle to making a claim, so it is advisable in all will validity claims to act promptly.

The other type of claim that may be relevant to you is for reasonable financial provision under the Inheritance (Provision for Family and Dependents) Act 1975.

Such claims are based on the premise that in the will or intestacy of the deceased, insufficient financial provision was left for the claimant, and the court is asked to award a reasonable sum.

Only certain categories of individuals are eligible to bring a claim. These are spouses, civil partners, former spouses and civil partners (provided there has been no remarriage or new civil partnership), co-habitees (if certain conditions are met), children of the deceased, any person not a child of the deceased who was treated as a ‘child of the family’, and any person being partly or wholly maintained by the deceased.

Inheritance Act claims must generally be commenced in court within six months from the grant of probate (if there is a will) or the grant of letters of administration (if there is no will).

Therefore it is paramount that anyone considering a claim acts quickly to ensure that it is begun within this period.

In terms of your grandfather’s estate, you would appear to be out of time, but it is possible to make applications to court for special permission after expiry of the limitation period.

However, late applications should only really be contemplated after full legal advice.

In any event, it appears that you would only be eligible to claim for reasonable provision from your grandfather’s estate if you can show that you were maintained by him.

In other words, you would need to have been in receipt of a substantial contribution in money, or something of equivalent worth, towards your reasonable needs.

Can you challenge your father’s will?

You asked about potential claims in relation to your father’s will and estate, presumably should he pass away without making a new will with more favourable terms towards you.

I have described will validity claims above and, of course, whether such a claim will exist or be worth pursuing very much depends on the precise circumstances that exist at the time.

Working on the assumption that nothing changes, your best course of action might be to then after taking specific legal advice, consider whether your father has made reasonable financial provision for your ‘maintenance’, and, if appropriate, make a claim under the Inheritance Act.

While you would be eligible to claim as a child of the deceased, whether you would succeed would depend on a variety of circumstances, including your financial needs. 

Claims by adult children have tended only to succeed where they have demonstrated a financial need for support to cover day-to-day living expenses and accommodation requirements, or that they are in financially straitened circumstances, or that they have physical or mental disabilities, or that there are some other compelling circumstances.

As a result, those adult children who are able to work and have a decent income, and have assets such as a home or savings, are generally less likely to succeed with a claim. 

Can your grandfather’s property portfolio be put back into your father’s estate?

You asked whether the value of the property portfolio that passed under the deed of variation can be brought back into the estate. 

It is possible for claimants to make an application within an Inheritance Act claim, for the recipient of assets disposed of by the deceased in the previous six years with the intention of defeating an Inheritance Act claim, to pay some or all of the reasonable financial provision awarded. 

This is part of the ‘anti-avoidance’ powers that the court have under the Inheritance Act to stop claims being intentionally frustrated by people giving away their assets before they die. 

In your case this would be an application for your brother to provide the money for the purpose of making reasonable financial provision in your favour. 

However, as it appears that by the time your father passes away, more than six years will have passed since he made the deed of variation, such an application will not be possible.