What can you do if you are excluded from a will?
If you’ve been left out of a will, what are your legal rights? Martin Oliver, partner at Wright Hassall LLP, explains.
The statement made by Oliver J, in a case concerning the exclusion of an adult child
from his parent’s will, that “an Englishman still remains at liberty at his death
to dispose of his own property in whatever way he pleases”, is of little comfort if
you have, against your expectations, been left out of a will.
Unlike several European jurisdictions, there is no legal requirement in the UK to leave your estate to your legal dependants. This means that, if you feel you have been unreasonably excluded from a will, you have to go to court in order to prove your claim.
The Inheritance (Provision for Family Independence) Act 1975 is the principal law governing claims made against a deceased’s estate, and this has recently been modified to take into account the evolving nature of family structures. The rules under which a claim can be brought are prescriptive and contained within the act.
Who can bring a claim?
A prospective claimant must fall into one of the following categories:
- the wife or husband of the deceased
- a former wife, husband or civil partner of the deceased, who has not remarried
- a child of the deceased
- any person who was treated as a child of the family in relation to marriage or civil partnership, or (and this is new) any person to whom the deceased acted as a parent in relation to ‘any family’, and not just that in relation to a marriage or civil partnership
- any person who was maintained by the deceased (excluding any commercial arrangements)
What constitutes reasonable financial provision?
The definition of reasonable financial provision depends on the identity of the claimant.
For the wife, husband or civil partner of the deceased, the courts will often apply ‘the deemed divorce test’. In other words, if the parties had divorced, rather than one spouse dying, what financial settlement would have been reached? The court takes a number of factors into account, including the length of the marriage, and the contribution made by the claimant to looking after home and family.
There are 7 specific factors that the court will take into account:
- the claimant’s current financial resources and likely future needs
- the financial needs of any other claimant (such as children)
- the financial needs of other beneficiaries
- any obligations and responsibilities of the deceased towards other claimants or beneficiaries
- the size and nature of the deceased’s net estate
- any physical or mental disability of any other claimants and/or beneficiaries
- anything else that may be considered relevant, such as the conduct of the claimant
Claims by cohabiting partners of the deceased would also be considered against the 7 factors above, and though the ‘divorce test’ could not be applied, the court would consider what reasonable financial provision would be required for maintaining the claimant’s standard of living.
There have been a number of cases dealing with claims of adult children, but the prevailing reasoning is that if they are financially secure, the chances of a claim succeeding is very slim.
Claims by other dependants, subject to the 7 factors outlined, will depend on the extent to which the deceased assumed responsibility for their maintenance, and for how long.
The court would only take into account ‘such financial provision as would be reasonable in all the circumstances of the case for the claimant to receive for his maintenance’.
Domicile
A claimant can only claim against the estate of someone who, when they died, was domiciled in England or Wales. Given the number of people now choosing to retire abroad, this restriction may well be reviewed in future. The domicile of the claimant is irrelevant.
There are 2 other elements that potential claimants need to consider before embarking on a claim:
- what they actually want; for example, money from the estate, property, or other financial asset
- that any claim must be brought within 6 months from the date when grant of probate was made
Another recent change to the legislation means that a claim can now be brought prior to the grant of probate being issued (rather than afterwards only, as was previously the case). Because of the prescriptive nature of the legislation, making a successful claim is not particularly straightforward, and anyone contemplating this route should seek legal advice.
About the author
Martin Oliver is a partner at Wright Hassall LLP, and heads up the team specialising in inheritance disputes and all litigation involving wills and trusts. To find out more, visit the website, or follow on Twitter @wrighthassall.