• Kylie Simmonds-Cox

I've been cut out of a relatives Will, what can I do?

In England and Wales, our legal systems allows people to have testamentary freedom, which effectively means individuals are free to leave their assets and belongings to whomever they choose upon their death and in whichever proportion they wish; without any legal obligation to provide for any particular family member or other individual. This is in contrast to some countries where forced heirship applies and in essence imposes restrictions to the freedom to write a Will. And so testamentary freedom is an important principle in English and Welsh law.

However, the principle of testamentary freedom can come as quite a shock to loved ones and relatives who assume that they are destined to inherit, especially if they are regarded themselves as next of kin. We will all be aware of individuals who complain to their parents about "spending their inheritance", as if the money already belongs to them and many will make financial plans on the assumption that they will inherit from their parents at some point in the future.

Naturally, spouses will also have an expectation to inherit from their spouse and the same applies to unmarried couples. However, it is not uncommon for spouses or partners to want to pass over their spouse or partner to benefit others such as their children. A reason for this might be that they are concerned that their children wouldn't benefit otherwise as their spouse or partner would have the same testamentary freedom to leave their estate to whomever they choose and those due to benefit may not be the same people as their deceased spouse or partner would have wanted.

With the prevalence of stepfamilies and second marriages, it is not uncommon for people to want to ensure that both their spouse and also children from a previous marriage are looked after following their death, however, this might mean that their spouse and/or children are not inheriting what they expected and when they expected it.

And so it is of no surprise that when the contents of the Will come to light, this could often lead to disappointment. And so in recent years we have seen a rise in claims for provision from estate under the Inheritance (Provision for Family and Dependants) Act 1975 as well as challenges as to the validity of the Will and the circumstances surrounding it.

The Inheritance Act

The Inheritance (Provision for Family and Dependants) Act 1975 is commonly referred to as the Inheritance Act or 1975 Act. It allows certain people to make a claim if someone they were financially dependent on didn’t leave enough provision for them in their Will.

This is an exceptions to the principle of testamentary freedom, since the Inheritance Act gives the courts in England and Wales the power to interfere with a person’s wishes as specified in their will and to substitute the court’s own judgment on who should benefit.

Claims can be made whether the deceased left a Will or where they died intestate (i.e. where they died without leaving a valid Will and the estate is distributed in accordance with the law). And so even if the person who died didn’t leave a Will, it’s still possible to make an Inheritance Act claim if you didn’t receive anything or enough to meet your needs.

Who can make a claim?

Only certain people are covered by the Inheritance Act. They are:

  • A husband, wife or civil partner

  • A former husband, wife or civil partner (if they’ve not remarried)

  • Someone who lived with the person who died as if they were their husband, wife or civil partner for at least two years before their death

  • Children, including adopted children and those who have been treated as if they were a child of the deceased e.g. stepchildren

  • Someone who was being financially maintained by the person who died

Any of the above can make an Inheritance Act Claim if ‘reasonable financial provision’ wasn’t made for them.

Making a Claim

Any claim, challenge or dispute against an estate is termed "Contentious Probate". It is highly recommended that you obtain legal advice from a specialist Contentious Probate Solicitor before starting any Inheritance Act claim. Most specialists will provide you with a free case assessment, look at your individual circumstances and advise you as to whether you've a chance of a successful claim.

There is a strict time limit in which you can bring a claim under the Inheritance Act and you only have 6 months from the date the Grant of Representation was issued in order to do so. If an inheritance claim succeeds it does not invalidate the will. The will itself still stands, except for the changes made by the court.

A word of warning, some Wills are written in such away that in the event of a beneficiary disputing the Will or making a claim against an estate, then the entitlement under the Will will be forfeited meaning that the beneficiary could be set to lose whatever entitlement was included within the Will.

Challenging a Will

There are a number of grounds which a Will can be challenged.

The person who made the Will:

  • did not have the capacity to make the Will

  • did not know and approve of the contents of the Will

  • did not duly execute the Will properly

  • was subject to undue influence or coercion.

You can also challenge a Will if the Will was forged or came about as a result of fraud.

If someone who has been left out of a will successfully challenges that will, the Will is declared invalid. The estate will then be distributed in accordance with the deceased’s last valid will. If there is no earlier valid will then the intestacy rules will apply. It is therefore important for anyone challenging the validity of a will to consider what will happen if their challenge succeeds. Do they stand to benefit under an earlier will or the intestacy rules?

Reducing the risk of a Will being challenged

While it's not possible to prevent anyone from exercising their legal right to challenge your Will after you've died there are things you can do to reduce the risk of a claim or a challenge being brought against your estate.

  • Ensure your Will is drafted by a suitable and properly qualified person, they will not only ensure that your Will is drafted correctly but they will also make assessment as to your capacity to make a Will and your understanding of the effects of making the Will.

  • If you are excluding a family member, then leave a personal letter alongside your Will detailing your reasons for not wishing to benefit them. Bear in mind that Wills become public documents and so if this information is personal or sensitive then it is best not to include it within the body of the Will itself. If your Will is then challenged in the future, this letter can be used to prove to the Court that you made these decisions for good reason, in full knowledge of their consequences.

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