Article

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

25 April 2019

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.

FAQs

There are a number of factors that the Court takes into consideration when assessing Inheritance Act claims, for example:

  • The size and nature of the estate – The Court will consider the value of the deceased’s estate and the needs of the beneficiaries. If the estate is large enough to provide for all claimants your claim may have a higher chance of being upheld, whereas if the estate is small and there are multiple claimants the court will need to balance the needs of everyone.
  • Your relationship to the deceased – Under the Inheritance Act 1975 only the following people can make a claim against the estate:
    • The husband, wife, or civil partner of the deceased.
    • A previous wife, husband or civil partner of the deceased, as long as they have not remarried or the decree nisi or absolute prevents any claim being made.
    • A child of the deceased.
    • Any person treated as a child of the family in relation to a civil partnership or marriage.
    • Anyone who was maintained by the deceased (this excludes any commercial arrangement).
  • Financial dependence – Your claim is more likely to be considered if you were financially dependent on the deceased. The court will then assess whether the deceased made reasonable financial provision for you, such as you were living with them and relying on their income for living expenses.
  • The contents of the will – To successfully make a claim you will need to present evidence that proves that the deceased previously made statements or actions that contradict things outlined in their will.
  • Any contributions to the estate – If you can prove that you have made contributions to the estate this will help uphold your claim.

If you believe you were a beneficiary in a missing will there are a few things you can do:

  • Search through the deceased’s home. It may be stored with other important documents.
  • Ask the deceased’s friends and family for more information regarding where the will may be stored.
  • Get in touch with the deceased’s bank or building societies to see if they have stored their will for them.
  • Use the National Will Register to search for the will. It can identify wills that are held by law firms and will writers that have been registered on the National Will Register and those that are unregistered.
  • Contact local solicitors or Law Societies to see if they have stored the deceased’s will, or can ask their member firms to check their archives.

Yes, you can leave your siblings out of your will if you choose to. However, a sibling may challenge this under The Inheritance Act 1975.

Yes, however, they can make a claim for reasonable financial provision under the Inheritance (Provision for Family and Dependents) Act 1975.

The intestacy rules determine how an estate is distributed if there is no will. The rules should be approached with caution, as for those who are co-habiting with partners, do not benefit under these rules. For example, there are restrictions on how much a spouse can inherit before children are taken into consideration, where they will take a share of the estate.

The intestacy rules can also cause issues in blended families. It is therefore vital to understand what the implications of contesting a will might be before any claim is embarked on.

In circumstances where you are eligible to make a claim, you can pursue for “reasonable financial provision”. The Inheritance (Provision for Family and Dependants) Act 1975 allows specified individuals to make a claim for financial provision.

The individuals who are eligible are limited to those who are referred to in the Act and the type of provision which can be provided to an individual by the Court, if a claim is successful, will be dependent on whether an individual has the status of a legal spouse or, falls within the ‘other individuals’ who are entitled to make a claim.

In order for a claim to be assessed by the Court and a Claimant’s legal team, it is necessary to take into consideration the finances claimant to ascertain if their monthly outgoings are more than their income. This will then be weighed up against factors such as the size of the estate and the needs of the beneficiaries named in the will.

The Court will also assess if the individual making a claim was financially dependent on the deceased or dependent in some other way, such as living in the deceased’s property which has now been given in whole or in part to another individual, either by the deceased’s will or pursuant to the Intestacy Rules.

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