I’m not happy with my late parents’ will – what are my options?

October 13th 2020

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 (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.  I would  emphasise that there is no substitute for obtaining advice from an experienced, qualified professional as each case will turn on its own facts

Claim that the will is invalid

This is a broad topic but essentially this claim will be based on one of more of the following:

  1. That the will was not properly executed in accordance with the formalities in s.9 Wills Act 1837
  2. That the testator lacked sufficient mental capacity to understand what he or she was doing
  3. 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).
  4. That the testator was subject to undue influence or pressure when signing his will.

Most of the claims in this area will involve more than one of these issues and they are often intertwined.

However the will being declared invalid may not necessarily be to the benefit of the claimant. The practical effect is that the last will executed by the testator prior to the disputed will takes effect and, if none, the intestacy rules apply. It perhaps goes without saying that it is important to establish who benefits from the will being declared invalid before embarking on such a claim.

Make 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.

Traditionally adult children who are capable of working (whether they did or not) fared very badly in such claims. Nowadays it is much harder to be certain about the outcome of such a claim. Each case will turn on its facts and the judge will have discretion provided that they apply the principles in the act, namely:

  • (a)         the financial resources and financial needs which the applicant has or is likely to have in the foreseeable future;
  • (b)         the financial resources and financial needs which any other applicant for an order has or is likely to have in the foreseeable future;
  • (c)          the financial resources and financial needs which any beneficiary of the estate of the deceased has or is likely to have in the foreseeable future;
  • (d)         any obligations and responsibilities which the deceased had towards any applicant or towards any beneficiary of the estate of the deceased;
  • (e)         the size and nature of the net estate of the deceased;
  • (f)          any physical or mental disability of any applicant or any beneficiary of the estate of the deceased;
  • (g)          any other matter, including the conduct of the applicant or any other person, which in the circumstances of the case the court may consider relevant.

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 of this 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 usually evidential – usually the promise will be made verbally rather than in writing.

One final word of warning – although your will may purport to leave everything to your children, you should note that jointly owned property may pass to the co-owner by survivorship regardless of what it says in your will.

This highlights the importance of taking professional advice not only if you feel that you have not been provided for but if also where you are preparing a will that you do not wish to be subject to challenge after your death.

Next Steps

If you would like further information or need advice, please contact Tom McInerney, Associate at Spratt Endicott Truman Solicitors on 01869 252761 or by email at tmcinerney@se-solicitors.co.uk.