This is an increasingly common concern, particularly when parents have re-married and perhaps had children with their new spouses. However, it is not always the case that parents have ‘cut out’ their children, often they have failed to update their wills to take into account changes in circumstances, written a will that is not formally valid (as is sometimes the case with a ‘home-made’ will) or not written a will at all.
So how does a disappointed beneficiary go about claiming a share of their late parent’s estate?
There are usually three possible claims, and this article provides a brief overview of each.
1. Claiming that the will is invalid:
This is a broad topic but essentially this claim will be based on one of more of the following:
- That the will was not properly executed in accordance with the formalities in s.9 Wills Act 1837
- That the testator lacked sufficient mental capacity to understand what he or she was doing
- That the testator did not ‘know and approve’ the contents (by which we mean that he signed a document that, without his knowledge, was not in accordance with his wishes).
- That the testator was subject to undue influence or pressure when signing his will.
2. Making a claim under the Inheritance (Provision for Family Dependents) Act 1975:
This act provides that certain categories of persons can make a claim on an estate where they are of the view that they have not been adequately provided for under the will or, if none, under the intestacy rules. This includes children, step-children and persons ‘treated as children’ of the deceased. The judge will have discretion provided that they apply the principles in the act, namely:
- the financial resources and needs of all applicants and beneficiaries of the estate, and any obligation or responsibility that the deceased has to these parties;
- the size and nature of the deceased’s estate;
- any physical or mental disability of an applicant or beneficiary, or any other matter which the court may consider relevant in the circumstances.
3. Proprietory Estoppel
The important elements here are that the testator promised an asset to the claimant and that the claimant relied on this promise to their detriment.
An example would be where a farmer promises his farmland to his son when he dies provided that his son farms the land in the meantime. Provided that the son suffers a detriment (for example, giving up a better paid job in order to farm the land) then the court can be invited to uphold the promise even if the farmer leaves his farmland to somebody else in his will.
The main difficulty here is evidential – usually the promise will be made verbally rather than in writing.
One final word of warning – will challenges are often tricky affairs, so it is vital to seek professional advice, either if you feel you have not been correctly provided for, or are preparing a will that you do not wish to be subject to challenge after your death.