25 April 2019

What can I do if I have been left out of a will?

Under the current law in England and Wales, anyone is entitled to make whatever will they wish, as long as they have the mental capacity to do so.

People often change their wills, deviating from their previous ones without necessarily alerting family members.

This happened to a family recently in Dorset, where a mother passed away and one sibling was left with almost the entire estate. This man was known locally as ‘Pirate Pete’ to many in Bristol. It came as a shock to his siblings to learn that their mother’s estate worth £1.2m was left to him, and was being spent as he saw fit; against his mother’s wishes, he bought a bar in Lanzarote.

If you have been cut out of a will unexpectedly and seem to have a ‘Pirate Pete’ in your family, who is unfairly inheriting a loved one’s estate, we are here to help and there are many options open to you.

As with Pirate Pete’s family, if you suspect that the deceased’s last will does not accurately reflect the deceased’s wishes, there may be grounds to challenge the will.

 

Grounds to challenge a will

 

  • Lack of testamentary capacity – was the person of sound mind at the time of making the will?
  • Lack of valid execution – was the will created properly in accordance with the law?
  • Lack of want, knowledge and approval – did the person know, understand and agree the contents of the will?
  • Undue influence – was the person unduly pressured by someone else to make the will?
  • Fraud/forgery – are there any suspicious circumstances surrounding the preparation of the will – for example, is there reason to believe that the person’s signature is not legitimate?

 

Inheritance provision for family

 

Alternatively, if the will cannot be challenged in any of those ways, but you are a child, spouse or cohabitant of the deceased and their will does not sufficiently provide for you, you may have grounds to bring what is known as an Inheritance Act claim. Certain classes of people eligible for this type of claim need to show that they were maintained by the deceased. For this type of claim, the following needs to be shown:

  • that the deceased died in England and Wales and that it was their permanent home;
  • the claimant falls with one of the classes entitled to bring a claim under the law; and
  • the deceased’s will has not made reasonable financial provision for the claimant, with reasons why this is the case.

 

Is there a time limit to bring these claims?

 

There is no time limit to bring a claim to challenge the will, however for an Inheritance Act claim, a claim has to be brought within six months of the date that probate was obtained.

 

Do I have to go to court to reach a resolution?

 

Generally, most of our cases involving contentious probate do not end up in litigation. We use various methods of alternative dispute resolution and try our best to find a resolution for you without the need for time-consuming and costly court proceedings.

 

What initial steps can I take?

 

If you are concerned and want to investigate the circumstances of the preparation of the will, we would suggest the following initial steps. If, after carrying these out, you are still suspicious of the will, we can help you.

  • Obtain as much information as you can, including a family tree, a timeline of events, and details of any solicitors involved.
  • Obtain a copy of the will and grant of probate (if this has been obtained). You can do this by conducting a search and downloading copies from the Government website (https://probatesearch.service.gov.uk/#wills). There is currently a £10 fee and you will need the deceased’s date of death.
  • You can delay probate from being obtained for a period of six months by applying for what is known as a caveat. You can do this by downloading PA8 Form from https://www.gov.uk/wills-probate-inheritance/stopping-a-grant-of-representation and submitting this to your local Probate Registry. There is currently a fee of £20 to do so and this can be extended for a further six months if necessary. You should only do this if you have legitimate concerns and reasons to investigate a will and delay probate from being obtained.
  • Gather as much information as you can from the solicitor who drafted the will, including written evidence describing the instructions provided for the will.

If you have been unexpectedly cut out of a will that you expected to be a part of, and would like some advice, please contact our Head of Disputed Wills, Trusts & Estates, Beth King-Smith on 01905 744842 or bkingsmith@hcrlaw.com.

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About the Author
Beth King-Smith, Partner, Head of Disputed Wills, Trusts and Estates
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