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9 February 2020

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What Are the Legal Rights of a Child Excluded From a Will?

Posted by: Chris Burrows

Coming to terms with being left out of your parent’s will is a difficult situation to manage, especially if you are uncertain as to why you have been omitted.

In some cases, disinheritance can leave you in a difficult position. However, there are legal rights for a disinherited child in the UK, and there is action you can take if you feel as though the decision to exclude you was wrong.

In this article, we will look at what rights you have under the law to challenge a will and the steps you should take to make your case.

The Importance of the Inheritance Act 1975

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In England and Wales, individuals are free to divide their assets as they see fit in the event of their death thanks to testamentary freedom.

This power does not come completely unchecked, though. The Inheritance (Provision for Family and Dependants) Act 1975 provides the opportunity for select people connected to the deceased to challenge the will based on not being left reasonable financial provision.

However, it is not always clear what that provision should be. Reasonable financial provision differs with each case, so it is not possible to give a guideline without knowing your situation in more detail.

There are several factors that can influence the court’s decision to accept your claim, including your financial position, the financial standing of any other beneficiaries, and whether the deceased’s estate was going to be passed on to a charity.

According to the Act, any child connected to the deceased can challenge the will. This includes adults, adopted children, step-children and children from an unmarried partner if they were financially dependant on the deceased.

However, being a child of the deceased does not mean a claim is automatically going to be successful. For example, adult children of the deceased may struggle to claim under the inheritance act because they are no longer financially dependent on their parent.

Young children will not be able to put together a challenge themselves, but a claim can be put forward on their behalf by a parent or guardian representing their interests.

If you are unsure whether you can challenge a will on the grounds of reasonable financial provision, speak to a solicitor. If you do not think you will be able to make this type of claim, there may be another option.

Other Grounds for Contesting a Will

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If you are not in a strong position to make a claim under the Inheritance Act, you may wish to challenge a will on the basis that it is not valid. If successful, this could result in the will being discounted with an earlier version being used or with the deceased’s estate being distributed according to the rules of intestacy.

There are several grounds for contesting the legality of a will:

Invalid Will

To be valid, your will must comply with Section 9 of the Wills Act 1837. The Act states that the testator (the person whom the will applies to) must sign their will in the presence of two witnesses who are present at the same time who must also sign the will. There are other criteria, such as your ability to understand the will, which need to be met that your solicitor can explain.

Lack of Testamentary Capacity

When a person makes a will, they must be of “sound mind, memory and understanding”. This means they have to have the mental capacity to understand what they are signing, the effects their actions will have and any claims they should take into account.

Undue Influence

Undue influence is when an individual is coerced into changing their will. Physical bullying and verbal abuse are key factors that can result in undue influence, but more subtle factors, such as a reliance on a particular relative or someone promoting a negative view of the deceased’s other children or relatives could also be factors.

If you think undue influence has taken place, it is important to speak to a solicitor as soon as possible, as these cases can be complex. This is because you will need to show evidence of a high standard to prove “actual undue influence”.

Lack of Knowledge or Approval 

There are cases where the deceased may not fully understand the contents of their will. As such, you may be able to contest a parent’s will if you suspect that they were unaware they were excluding you.

Fraud

If you believe fraud took place, such as someone else signing the will, and as a result, you were written out of the will, you may be able to make a claim.

However, this is can be difficult to prove as: (1) fraud usually takes place without anyone’s knowledge, and (2) the key witness, ie. the deceased, cannot give evidence.

You must be sure you can prove fraud if this is the route you wish to take, and it would be worth discussing the best way to do this with your solicitor before taking action.

How to Contest a Will

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If you are confident that you have a claim, the first thing you need to do is speak to a solicitor. Challenging a will can be a complex and lengthy process and not one that should be undertaken alone, and the basis of your claim will have a significant impact in the steps you need to take to pursue your claim. 

The way a will is disputed differs from case to case, but below are the general guidelines to follow:

  • You need to act fast. If you are submitting a claim under the Inheritance Act, you have six months from the date probate is granted. Other grounds for challenging a will have different time limits.  Regardless of your basis, you will need time to build your case.
  • Have a copy of the will sent to your solicitor. They will need to go through it carefully and find out more about the estate. If the executor of the estate refuses to give you a copy of the will, you can apply for a copy from the Probate Registry. If you do not think the will is valid, you can lodge a caveat to prevent the grant of probate being issued until your concerns have been investigated.

Try to reach an agreement out of court. It can be emotionally difficult taking your family and close friends to court, making mediation a more amicable way to resolve the issues.

What is the Likelihood of Successfully Challenging a Will?

There are a huge variety of factors that can influence the probability of success, but building a strong case is the first step to taking your claim in the right direction.

Whether you are struggling to support yourself since the passing of your parent or whether you believe you were written out by the actions of a malicious third party, the legal team at Glaisyers is in your corner to offer support and advice.

Get in touch with us today to see how we can help.

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Chris is head of the firm's Private Client department. He is a qualified Trust and Estate Practitioner who helps clients to face a variety of challenges, including managing their assets and estates.

Chris Burrows - Partner, Head of Private Client

To discuss how Glaisyers can assist you contact Chris Burrows on Chris.Burrows@glaisyers.com or via 0161 832 4666.

Get in touch today