What to do if you’ve been left out of a will

If you feel you have been inadvertently or unfairly left out of a will, you may be able to make a claim under the Inheritance Act.

Anjali Narshi, Lodders’ associate solicitor and contentious probate specialist in our Dispute Resolution team, shares guidance on what the Inheritance Act encompasses, and explains what your legal options are if you have been left out of a will.

What is the Inheritance Act?

The Inheritance Act allows certain people to bring a claim if a will either completely leaves them out or if it makes insufficient provision for them. Claims are also possible where there is no will and the consequences of the intestacy rules means that no (or little) provision is made for them.

Who can make a claim under the Inheritance Act?

Only certain categories of people can claim under the 1975 Act. These include:

• A spouse or partner of the deceased
• An adult child of the deceased
• A child of the family
• A co-habitee (who lived with the deceased for at least two years prior to their death)
• A former spouse or civil partner
• Someone who was maintained by the deceased for at least two years immediately before their death

What are the consequences of making a claim under the Act?

While it varies depending on the facts and circumstances of the case, if a person has been left out of a will, typically they will request that the court grants reasonable financial provision from the estate for their maintenance.

In the case of a spouse, however, the court would only be tasked with considering whether to make an award that would be reasonable in all the circumstances of the case for a husband or wife to receive, whether or not that provision is required for his or her maintenance. This can often result in larger awards being made for spouses.

Case example: Ms Brown

As a fictional example, let us imagine that a client, who we will name Amanda, has sought legal advice following the death of her partner, John. She has recently discovered that John left the entirety of his estate to his son, who we will call Stephen. The will was made shortly after John divorced Stephen’s mother.

John passed away suddenly after a short illness. At the time of his death, Amanda and John had been living together for the past eight years, and they were engaged to be married later that same year.

During the time they lived together, John paid for all the household bills and general living expenses. Amanda paid for food shopping and holidays. John was a wealthy man and his estate is said to be worth around £2 million.

As a co-habitee and dependent, Amanda is entitled to bring a claim under the Act for reasonable financial provision to be made for her from John’s estate.

Inheritance Act Claim: what to take into account

There are a range of factors that the court will consider when deciding whether to make an award. Some of these factors are as follows:

1. Financial needs and resources of the claimant

The court will consider the claimants financial needs and resources both now and in the reasonably foreseeable future.

In the above case example, Amanda works full-time but will need to give up work for at least a day a week in order to care for her older sister, Jennifer, who has just been diagnosed with dementia. Jennifer has no other immediate family.

Amanda earns a modest salary, does not have a private pension and does not own her own home. She has little in the way of savings and lives frugally.

Earlier cases have established that Amanda is entitled to live comfortably according to her station in life. She should not be left in a position where she would now be homeless.

2. Needs and resources of other claimants/beneficiaries

The court will also consider the financial needs and resources of any other applicant or beneficiaries.

In our example, Stephen is a named beneficiary in John’s Will. Stephen lives with his mother, who has now remarried but is not as wealthy as John was. Moreover, John had already made financial provision for Stephen following the divorce and there is a property which has been left to Stephen in trust and will become available to him in two years’ time when he turns 25 years old.

Stephen also works full-time and is likely to continue doing so for the rest of his working life.

3. Size and nature of the net estate of the deceased

John’s estate is large and comprises mainly of the property, some vintage cars and stocks and shares. John also had sizeable savings and several private pensions.

Would Amanda’s claim be upheld?

It is arguable that the facts above would certainly strengthen Amanda’s claim. However, the courts are also mindful of a testator’s final wishes and will only interfere with the provisions of a will in so far as it is necessary. This usually means that it will do the minimum required to achieve justice.

If you are making a claim, it is always a sensible to seek professional advice. Lodders can help assess the strengths of your case and provide guidance on whether a claim might be worth pursuing. Find out more.

Timescales

Any claim under the Inheritance Act should be brought within six months of the Grant of Probate having been issued. It is very important to ensure that the claim is brought as soon as possible, in order to avoid the estate having already been distributed.

If the executors have started distributing the estate, making a claim will become increasingly complicated, and a claimant might face not being able to recover anything, even if they meet the criteria.

Avoiding Inheritance Act claims

When writing a will, it is important to review it regularly, especially when major life events occur (birth, death in the family, marriage, divorce, etc.) as this might have an impact on what goes in the will. Even if no major life events have happened, it is always a good idea to have a review of your will every couple of years, to make sure that it is still in accordance with your wishes.

If you wish to purposefully exclude somebody from your will (e.g. estranged child, estranged partner, etc.), it would be a good idea to make a clear note of the reasons why. A letter of wishes could accompany your will and set out your reasons. Whilst such letters are not binding, they are persuasive and can help to clarify the testator’s thought process.

Need more advice on an Inheritance Act claim?

If you think you might want to make an Inheritance Act claim, get in touch with our disputed wills & estate specialists to see how we can help. Equally, if you dealing with an Inheritance Act claim and need help forming a defence, we can assist.

For advice regarding disputed wills and estates, please get in touch.