What to do if a beneficiary has been excluded

What can you do if you have been unexpectedly excluded from your parent’s estate? Is there anything that can be done? In this case study, Kelly Carr of Rothley Law looks at the options available when a beneficiary has been excluded from a will.

Example case study

A parent, Flora, made a will with a solicitor in 1990 leaving everything to her two children, Bill and Ben, in equal shares. Bill travels the world with his well-paid work and does not contact Flora as much as she would like. Ben, on the other hand, lives next door to Flora and whilst he is still busy working, he visits or contacts Flora on a day-to-day basis.

20 years passes and in 2010 there is a relationship ending argument in the family because Flora tells Bill that she is fed up of his ‘laziness’ with their relationship. As a result, Flora and Bill fall out.

Flora is now older and suffers with old age-related conditions. Ben helps care for Flora on a day-to-day basis. In recent years he has given up his full-time job to become a full-time carer for Flora. Whilst Ben is happy to care for Flora, the responsibility has taken its toll on Ben, and he has been diagnosed with depression, stress and anxiety.

There is animosity between Bill and Ben due to the perceived imbalance in care responsibilities of Flora. Ben shares his view that Bill is lazy with Flora daily. In 2011, Bill and Flora are still not on talking terms and a new will is made excluding Bill and leaving her whole estate to Ben. Within 12 months Flora passes away, and Bill finds out that he does not benefit under Flora’s estate.

What can a beneficiary do if they have been excluded from a will?

As a disappointed beneficiary, Bill could instruct a specialist solicitor to explore the relevant potential claims.

Validity of the will

Bill could explore challenging the validity of Flora’s will, based on:

Lack of capacity. Were any of Flora’s conditions severe enough to render her to lack testamentary capacity and what contemporaneous evidence is there? The solicitor would need to obtain Flora’s medical records and review them around the time the 2011 will was made for supporting evidence.
Lack of knowledge and approval. Did Flora understand the terms of her 2011 will? The solicitor should consider reviewing the 2011 will and if it was made by a solicitor, write to the will writing solicitor for a copy of their will file and a special written request listing a variety of questions about the preparation and execution of the will. This is called a Larke v Nugus request. The Larke v Nugus request would ask about how the terms of the will were discussed and explained to Flora, were the solicitors the same solicitor that prepared the previous will in 1990? If not, why not? Was Flora vulnerable and reliant upon Ben’s suggestions to her? Is there independent evidence of this? Was Ben involved in the preparation and execution of the will? The will file will be crucial evidence.
Undue influence. Is there strong evidence that the 2011 will was categorically against Flora’s wishes evidencing that the 2011 will was subject to undue influence. The court will require the strongest of evidence to support this allegation as it is a serious allegation akin to fraud. If there is any other plausible explanation for the existence of the will, the court will likely not find that undue influence has occurred. Whilst it may be upsetting and morally wrong, somebody wearing the testator down over time to include them as a beneficiary in their will is not undue influence. Undue influence happens behind closed doors and in secrecy and there tends to not be any evidence of it. These cases are extremely difficult to prove.
Fraud or forgery. Does Flora’s signature raise any concerns? A handwriting expert can be instructed to review the Flora’s signature on the will compared to other original sample signatures around the same time the will was signed and prepare an expert’s report confirming, in their expert opinion, whether the signature is likely to be the Flora’s or not. The difficulty with instructing a handwriting expert is that in an ever increasingly digital world, original handwritten signatures tend to me hard to collate, and a handwriting expert will need numerous original signatures. The solicitor should consider who witnessed the will and question were they independent. The witnesses accounts of the execution of the will would be important.
Formalities. Does the will comply with section 9 of the Wills Act 1837? If Flora’s will is technically incorrect, it may be invalid or render parts of it invalid.

If there is sufficient evidence that the will is invalid, Bill may engage a solicitor to explore a validity claim against the estate. This would start with the solicitor sending a letter of claim detailing why Bill asserts that the will is invalid, on what grounds and with what evidence.

The Inheritance (Provision for Family ands Dependants) Act 1975

Instead of, or in the alternative, explore whether Bill is in financial or medical need and has a claim for reasonable financial provision under the Inheritance (Provision for Family and Dependants) Act 1975 by reviewing his financial and medical circumstances as per the section 3 factors.

Both Bill and Ben are blood children of Flora and so Bill is eligible to bring a claim. When considering whether Bill would receive reasonable financial provision from the estate, the court would consider Bill and Ben’s (as beneficiary):

financial needs and resources now and in the future
obligations and responsibilities that Flora has to Bill and Ben
size and nature of the estate
physical or mental disabilities
other relevant factors such as conduct

We know that Bill has a well-paid job and that Ben gave up his job to look after Flora full time. This potentially could mean that Ben has fallen into debt or exhausted his savings. We also know that Ben has diagnosed medical conditions which may affect his financial resources in the future. The court would consider these factors and it likely that Ben would put forward a ‘means based defence’ if a claim were issued by Bill. From the information we have, whilst Bill is eligible to bring an Inheritance Act claim, it is not a strong claim, and it is unlikely that it would succeed.

Alternative dispute resolution

If, following his initial investigations, Bill found sufficient evidence that the will was invalid, he may send a formal letter of claim to Ben, who can respond. The period of time before a claim is issued is called the ‘pre-action phase’.

Providing there is a genuine claim, it is in both Bill and Ben’s interest to attempt to agree a compromise between themselves. Bill and Ben should engage in dispute resolution, such as a mediation, or engage in ‘without prejudice’ written correspondence whereby they can attempt to narrow the issues in dispute and agree a settlement. This will resolve the dispute far more quickly, with less stress and would be more cost effectively than if Bill were to issue his claim at court.

About the author

Kelly Carr is a Senior Associate Solicitor at Rothley Law and acts for claimants, defendants, and executors in a wide range of disputes including challenges to the validity of a will; claims for reasonable financial provision under the Inheritance (Provision for Family and Dependents) Act 1975; professional negligence arising out of negligent will drafting or Estate administration; removal of executors; and proprietary estoppel claims.

Find out more

Wills Act 1837 (Legislation)

Inheritance (Provision for Family and Dependants) Act 1975 (Legislation)

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Publication date

31 October 2025

Any opinion expressed in this article is that of the author and the author alone, and does not necessarily represent that of The Gazette.