If you are left out of a Will, there are various options available to you. A number of these rely on the deceased’s Will being invalid and others rely on you having not been left what is known as “reasonable financial provision” or not what you had been promised.
The distinction between these two types of claims lies in their basis. In the first scenario, the Will is challenged on the basis it is not valid, and therefore some other distribution of the deceased’s estate should take place, whether that be in accordance with a previous valid Will or the intestacy rules. In the second scenario, the Will is not challenged, however, the content of it is deemed to make insufficient provision for the claimant or, the estate includes an asset which it should not, so a claim may be pursued to either secure financial provision or the promised asset.
When do the intestacy rules apply?
Dealing with each of these different types of claims in turn, there are various reasons for which a Will may not be valid, and it can, therefore, be challenged. It is always wise to ensure that before embarking such a claim, you have considered what would happen in the event the claim was successful. The reason for this is if a Will is deemed invalid, and there was is no previous Will, the intestacy rules determine how an estate is distributed.
The rules should be approached with caution in as far as those people who are co-habiting with partners, do not benefit under those rules for example and there are also restrictions on how much a spouse can inherit before children are then taken into consideration, and they take a share of the estate.
The intestacy rules can also cause issues in blended families. It is therefore vital to understand what the implication of contesting a Will might be before any claim is embarked on.
The importance of a Will search
It is also advisable to conduct a Will search with a service like Certainty the National Will Register. This will assist in being able to establish: whether the Will being used to distribute the estate is, in fact, the last Will; if there are any other Wills that the Testator wrote that could assist the case or to confirm your position in claiming the estate.
Reasons to challenge a Will
The claims which seek to challenge a Will are usually for the following reasons:
- lack of testamentary capacity in as far as the testator did not have the relevant capacity to make the Will;
- lack of knowledge and approval which means that although the testator may have had the capacity, they did not understand the content and effect of their Will;
- undue influence whereby the Will has been procured by the exertion of undue influence on the testator;
- fraud;
- in circumstances where the Will has not been signed and witnessed properly.
Wills can also be challenged on the basis of fraudulent calumny, however, that is a particularly niche area on which there is little case law presently, but it is emerging, and we are seeing more of those types of cases.
If you think that you may have been left out of a Will because the testator did not have the necessary capacity at the point of giving the instructions for their Will to be prepared, it may be possible to challenge the Will.
Ordinarily, the first port of call in these circumstances would be to make enquiries with the solicitor or Will writer to ascertain how the Will came about in the first instance. Case law allows you to make enquiries as to the preparation and execution of the Will, and this is something which we are able to advise you on should that be necessary.
These enquiries can also be made where it might be suspected that the testator lacked the relevant knowledge and approval of the content of his or her Will. It can also be helpful to obtain the deceased’s medical records at an early stage so that an assessment can be carried out to ascertain whether, on the face of them, they are supportive to the claim.
Lack of testamentary capacity can occur both as a direct result of a medical condition such as dementia, but also due to other causes which have the effect of compromising capacity, such as grief or depression.
If you are concerned that you may have been left out of a Will because it has been procured by undue influence being exerted on the testator or by fraudulent means, and this can include a Will being signed by someone other than the testator imitating the testator’s signature, then evidence of those concerns will be needed so as to demonstrate to a Court that the Will should be declared invalid for those reasons. Undue influence claims are notoriously difficult to bring and primarily, this is because the person who could give the best evidence, the testator, has died.
It is common to pursue an undue influence claim alongside alternative claims as mentioned above, given that typically, the prospects of being successful with a claim challenging the validity of a Will based on lack of testamentary capacity or lack of knowledge and approval is likely to be higher than an undue influence claim.
Where you suspect that you may have been left out of a Will because it has been procured as a result of fraud, firstly you may wish to consider reporting to the police and secondly, you may wish to obtain expert handwriting evidence to ascertain if the signature appended to the Will is that of the testator or someone else.
Wills can also be challenged if they do not comply with the requirements of Section 9 of the Wills Act 1837, which sets out the way in which a Will must be signed and then witnessed. New legislation is being implemented to govern remote witnessing of Will, and it is anticipated that these types of cases Will increase.
If a Will fails for lack of compliance with the requirements, it is not often in these circumstances, that an individual has been left out due to lack of capacity or lack of knowledge and approval. We usually see these types of cases where a Will is made without taking advice from a solicitor.
The result of the lack of compliance then causes the individual to lose out due to the Will not being valid. In these circumstances, either the previous valid Will would govern how the estate is distributed or, as set out above, the Intestacy Rules would apply.
What happens you have been left out of a Will but you do not want to challenge the validity of it?
Separate to claims challenging the validity of a Will, you may have been left out of a Will but not seek to challenge the validity of it. In circumstances where you are eligible to make such a claim, you can pursue for what is referred to as “reasonable financial provision”. The Inheritance (Provision for Family and Dependants) Act 1975 allows specified individuals to make a claim for financial provision.
The individuals who are eligible are limited to those who are referred to in the Act and the type of provision which can be provided to an individual by the Court, if a claim is successful, will be dependent on whether an individual has the status of a legal spouse or, falls within the other individuals who are entitled to make a claim. In order for a claim to be assessed, it is necessary to take into consideration the finances of the potential claimant to ascertain if their monthly outgoings are more than their income. That then has to be weighed up against factors such as the size of the estate and the needs of the beneficiaries named in the Will.
The Court will also assess if the individual making a claim was financially dependent on the deceased or dependent in some other way, such as living in the deceased’s property which has now been given in whole or in part to another individual, either by the deceased’s Will or pursuant to the Intestacy Rules.
How else can I challenge a Will?
There are also two other types of claims which can be explored if you have been left out of a Will; the first is if you have been left out of a Will as a result of negligence on the part of a solicitor or Will writer and the second, is if you have been left out of a Will when you had been promised that you would receive a particular asset, which has now been given to a third party or, will be distributed to a third party in accordance with the Intestacy Rules.
If you have been left out of a Will as a result of negligence, you are entitled to make enquiries, as set out above, as to the execution and preparation of the Will so that you are able to ascertain what, if anything, has gone wrong which has caused you to be left out of the Will.
These types of claims do have to be dealt with carefully to ensure that the right person is making a claim, and therefore you should always seek advice before embarking on a claim of this type.
With regard to the second type of claim whereby the testator promised you a particular asset and their Will does not reflect that or alternatively, they have not left a Will at all and the asset will be directed elsewhere by statute, it will be necessary to collate evidence of the promise which was made to you.
We often see this scenario in farming families whereby a farm or land has been promised to an individual, but that is not then reflected in the deceased’s Will, or alternatively, a partnership agreement has been drafted which contradicts the promise which had been made, and as a result, the individual concerned does not receive the asset as the deceased had intended. This area of law is known as proprietary estoppel and is particularly complex, and various factors need to be assessed to ascertain if a claim could be successful.
If you have been left out of a Will and any of the claims set out above appear to relate to your individual circumstances, we will happily discuss your matter with you.
