What Happens If I Am Left Out of a Will?

INTRODUCTION

We've seen many situations where individuals assumed they would be included in the Will or were explicitly told they'd be included. Being left out of a Will is not desirable for anybody, especially given you've just lost somebody you love.

Imagine, for example, the following situation:

Your parents are divorced, and two years later, your mother remarries a man who has a daughter from his first marriage. Everyone gets on well with each other, and you all celebrate holidays together.

Your mother, who had a prosperous career, then dies suddenly, leaving behind a large estate. You suddenly learn that she left everything to her second husband, but you receive nothing.

To make matters worse, you discover that your stepfather has changed his Will to leave everything he received from your mother (including the inheritance he received from her) to his only daughter from his first marriage. 

Dealing with this additional emotional turmoil can leave you feeling cut out and isolated, stressed, and confused. Were you wrongly left out? Was it an oversight?

The good news is that we see situations like this all the time, so we can assure you that there are a number of scenarios where you can challenge a Will. This article lays out the range of circumstances for doing so.

However, we do stress at the outset that you should act swiftly. We recognise that some people may prefer to hold off until after a grieving period, but you should bear in mind that some steps are time-sensitive. In other words, you may not be able to act after a certain period has elapsed.

• clarify the circumstances under which you may have been left out of the Will; and
• explain where you may be able to contest the Will.

BASIS FOR CHALLENGING THE WILL: THREE SCENARIOS

1. Scenario 1: The Will is valid, but you have been left out of the Will or not left as much as you expected/need.
2. Scenario 2: The Will is invalid, and you have been left out of the Will.

3. Scenario 3: Depending on the specific circumstance, it could be either Scenario 1 or 2 above, 

Scenario 1: You are not challenging the validity of the Will, but as a DEPENDENT CLOSE FAMILY MEMBER, you have been left out of it or not left as much as you expected or needed.

Suppose you are a close family member who financially depended on the deceased person. In that case, you may be able to pursue a claim for what is referred to as "reasonable financial provision" under the Provision for Family and Dependents Act 1975.

The Court will then decide whether you should receive some of the estate left behind. Under these circumstances, you must be eligible to make a claim for financial provision. For further information, see Scenario 1 below ("Claims Under the Inheritance Act").

Scenario 2: You are challenging a Will, but ARE NOT A CLOSE FAMILY MEMBER, NOT FINANCIALLY DEPENDENT, or have reasons to believe the WILL IS INVALID.

Under these circumstances, you may still be able to file a claim if you think the Will is unfair or was made under bad circumstances. For example, if you still think you've been left out of a Will when you were promised an asset, but that asset has been given to a third party. 

Scenario 3: "Mixed case," depending on the specific circumstance.
We'll also lay out some example circumstances where either Scenario 1 or 2 could apply and apply recommendations for the best course of action.

SCENARIO ONE: CLAIMS UNDER THE INHERITANCE ACT 

Under English law, Testators can leave their wealth to whomever they wish. In other words, there is no "forced heirship" as in other jurisdictions.

That said, particular cases are laid out whereby an individual should have benefited from a Will has been left out of the Will. Under these circumstances, that person is considered to be in genuine financial need due to a lack of reasonable provision, as laid out under the Provision for Family & Dependents Act 1975. 

• It's a law in England and Wales that protects certain family members and dependents financially dependent on someone who has passed away.
• Under the law, specific eligible individuals can make a claim against a will if they were not provided for with 'reasonable provision', even if they were not named in the Will.
• If reasonable financial provision for the applicant is not laid out in the Will, the Court may decide to grant relief under the Inheritance Act.
• The applicant must be able to live at a level that is regarded as neither "luxurious" nor "poverty-stricken".

Persons Protected Under the Law

• A spouse or civil partner
• A former spouse or civil partner (if they have not remarried)
  
• Children (both minors and adults)
• Adopted children
• Someone who has been treated as a child of the marriage (e.g., step-children)
• Someone living continually with the deceased for at least two years before death.
• Any person being financially maintained in some way by them.

To make a claim

Any claim under the Inheritance Act must be made by one of the individuals above and demonstrate that they were financially dependent on the person who died.

What happens if there is no Will?

• If there is no will in place, then the rules of intestacy apply to determine how the estate will be distributed (please refer to other FAQs on the rules of intestacy).
• Under these circumstances, a close family member who was financially dependent on the deceased can still make a claim under the Inheritance Act if they did not receive a reasonable provision from the Estate.

• the financial resources and needs of the applicant and any other party involved in the foreseeable future;
• any obligations and responsibilities the deceased had towards the application and/or beneficiaries;
• the size and nature of the deceased individual's estate;
• whether the applicant or any beneficiary of the estate has any physical or mental disabilities; and/or
• any other relevant matters.

Should your application be successful, the Court has the authority to grant various forms of awards, such as a one-time payment or recurring payments, transfer of property, or a lifetime right to reside in a property with the property returning to the estate after the applicant passes away.

Are there any time limits under the Inheritance Act to make a claim?

Yes. You have six months to make an Inheritance Act claim.

You may be able to apply to the court for an extension under certain circumstances.

Complicated Process

It's essential to bear in mind that any claim made under the Inheritance Act can be complicated, even if 'eligibility' appears clear-cut. And remember the six-month time limit too.

So we highly recommend you speak with us at the earliest opportunity, even if you think you're out of time but still think you might have a claim. We'll guide you through your options and, where appropriate, refer you to one of our solicitor partners.

SCENARIO TWO: CLAIMS THAT DON'T FALL UNDER THE UNDER THE INHERITANCE ACT

Even if the claim doesn't fall under the Inheritance Act, you may still be able to make a claim if you have been left out of a Will or have been left less than you expected.

This section summarises the circumstances where you might still be able to contest the Will.

1. Technical error or oversight / Issues with the Will itself

If you have reason to believe you've been left out of a Will, it may be due to technical issues. It does happen, and more often than you expect.

For example, the wording may not be precise, or the Will hasn't been written correctly, such that it didn't properly reflect the deceased individual's wishes.

If this happens, please get in touch with us. If this is the case, we can apply to the Court for a process known as "rectifying the will".

2. The Will was made under pressure (coercion)

If you can prove that you were left out of a Will and the Will was made under pressure or coercion, then you may be able to have the document declared invalid.

For this to happen, you need to prove that the will was made under pressure and does not reflect the true wishes of the deceased individual (see other FAQs on this).

3. Diminished (mental) capacity

If you were left out of the Will and believe that the deceased individual did not have the mental capacity to understand what they were doing, you may also be able to challenge the validity of the Will in Court.

To challenge a Will's validity based on a lack of mental capacity, you must prove that the person who made the Will did not have the mental capacity to understand what they were doing when they made the Will.

You can also contest the validity of a Will under "diminished capacity" if you can prove that the deceased individual was: 

• under the influence of alcohol and/or another intoxicating substance; and/or
• taking medication at the time of writing their will; and/or
• in a compromised state due to experiencing grief or depression. 

If you think this is the case, then please get in contact with us. We'll examine how the Will was made in the first place and then advise you on the options, including how you can obtain the deceased individual's medical records so that you can make an assessment to support your claim. 

4. Lack of knowledge and approval

If you were left out of a Will and you have reason to believe that the person who made the Will did not know or did not approve of the contents of the Will. Often, this happens when a Will is drawn up without taking advice from an expert will writer or solicitor.

If you feel that you've lost out because of this, you may also be able to challenge the Will's validity.

To challenge the validity of a Will based on lack of knowledge or approval, you would need to prove that the deceased individual who made the Will did not have full knowledge or understanding of its contents and/or did not understand the implications of the Will.

5. Outright fraud/financial abuse/undue influence

If you believe that you were left out of a Will because the deceased individual who made the Will was subjected to undue influence by a third party or by fraudulent means, then you can challenge the validity of the Will.

Here are some examples:

• The Will has not been signed and witnessed correctly.
• You might suspect that the will was signed by somebody other than the Testator who was copying the Testator's signature.
• The Testator was deceived or coerced into making certain decisions or was under another individual's control when making the Will.
• A third party has taken control of a vulnerable person's finances unethically. 

In the case of fraud, you may first want to report the issue to the police. In addition, you may also want to secure the opinion of a handwriting expert to prove if any signature was a forgery.

In the case of undue influence, be aware that an undue influence claim is complicated since, in most cases, the Testator has already died, and it's much more difficult to prove.

If you're unsure about the next steps, please contact us, and we'll guide you through the available options.

6. Estate administration issues - Missing Will/Destroyed Will

Managing a missing or destroyed will in the context of estate administration under English law often creates uncertainty, ambiguity, confusion, and a potential loss of trust regarding the deceased individual's wishes. Further, if you have reason to believe that a third party purposefully concealed or destroyed the Will, then these complications are amplified.

If the Will is missing, but there is a copy, inferring the deceased's intentions from this could be possible. However, it would help if you established that the Testator neither annulled nor revoked the Will for the copy to be relied upon.

Although there is a chance that the estate will be divided under the laws of intestacy if both the original and a copy are absent, this could prevent you from filing a claim under the Inheritance (Provision for Family and Dependants Act 1975). Therefore, make every reasonable attempt to track down the Will's original or duplicate of it.

Intentionally damaging a will, for example, through burning or tearing, can be viewed as an act of revocation. However, if evidence suggests a third party destroyed the Will without the testator's consent or knowledge, somebody could argue that the Will was not properly revoked.

Under these circumstances, a copy of the Will may be admitted to probate, provided it can be proven to be an accurate reflection of the original and there was no intention by the Testator to revoke it. 

Collecting supporting evidence such as written correspondence, witness testimonies, and other documentation might be necessary to confirm the Testator's intentions.

Conclusion

An urgent and careful approach is necessary when a Will is missing or destroyed. If there's any suspicion of fraudulent behaviour or undue influence, it may be grounds for contesting the Will's legitimacy. Therefore, we encourage you to contact us if you need help navigating these circumstances.

Remember, without a valid Will in place, the Estate will be distributed according to the intestacy rules, which stipulate a strict order of inheritance. Therefore, it's in the best interest of all parties to locate the Will or its valid copy to ensure the Testator's wishes are upheld.

7. Negligence

This is where you've been left out of a Will due to mismanagement or incompetence in the Probate/Trust administration process. Usually, a solicitor or will writer has been negligent or has provided improper professional advice. If this happens, you're entitled to enquire about the preparation and execution of the Will to find out what specific factors have caused you to be left out of the Will.

8. You've been promised assets that don't appear in the Will (Pre-Death Agreements).

It sometimes happens that the individual who drew up the Will intended to leave you certain assets. However, those assets may not have been included in the Will for whatever reason.

To challenge the validity of the Will, you would need to provide evidence that the person who made the Will intended to leave you the assets promised to you. Cases like this can become complex legal matters, so it's best to reach out to us, and we can advise you on the best course of action.

SCENARIO THREE: SITUATIONS POTENTIALLY COVERED BY THE INHERITANCE ACT, DEPENDING ON CIRCUMSTANCES.

1. Disinheritance
You may be able to file a claim under the Inheritance (Provision for Family & Dependents) Act of 1975 if you were wilfully left out of a Will or received less than expected.

However, keep in mind that English law protects people's freedom to distribute their estate however suitable. Depending on the circumstances, you might be able to contest the legality of a will using arguments like undue influence or the decedent's lack of mental capacity. When dealing with these challenging circumstances, always seek advice.

2. Negligence

You might be able to contest the Will if the person who drafted it made a mistake that resulted in an unfair or invalid Will.

On the other hand, you can file a claim under the Inheritance Act if the deceased did not appropriately provide for their dependents or possessions.

3. No Will

If the deceased individual did not leave a Will, their Estate would be distributed according to the rules of intestacy. In such a situation, their assets will be distributed to their next of kin in a specific order of priority set out in law.

However, if you were financially dependent on the deceased and they didn't adequately provide for you, you may be able to file a claim under the Inheritance Act.

4. Unfair exclusion

If you feel you were unfairly excluded from a Will, you could file a claim under the Inheritance Act if you were financially dependent upon the deceased and have not received reasonable financial provision from their Estate.

A person's claim might not be successful if they previously received a reasonable financial provision from the Will. Generally, you can file a claim within six months following the Grant of Probate.

Finally, the size of the Estate can affect the ability to pay claims; a small estate might result in a more minor or nonexistent provision.

5. Inadequate provision

You might be able to claim under the Inheritance Act if the deceased didn't leave you with appropriate financial support. This depends on several circumstances, including the amount of the Estate and the claimant's financial needs. Alternatively, you may question the Will's legitimacy in certain situations.

Time limits for Inheritance Act claims

You have six months to file an Inheritance Act claim, starting from the date when probate was granted. In some circumstances, you may be able to apply to the court for an extension, so it's still worth contacting us if you're out of time but think you might have a case to file a claim.

KEY TAKEAWAYS

1. Considerations for contesting a Will

It's critical to understand that you will probably face a significant challenge in acquiring a share of the inheritance if you find yourself left out of a Will and feel compelled to fight it.

Remember that any claim can be drawn out, expensive and distressing, so make sure you assess whether it's financially and emotionally advantageous and whether the gains outweigh the legal expenses and frustration involved.

2. Invalidating a Will

A Will may be challenged on the basis that it's invalid for several reasons. Therefore, it's wise to think about the consequences of a successful claim before embarking upon any challenge.

For example, if a Will is found to be invalid and there is no other will, the division of the estate is governed by intestacy laws, which could be problematic, particularly for blended families.

3. Will search

Searching for a Will on the National Will Register can help ascertain whether a Will used to distribute the estate is actually the last Will a Testator wrote.

A search can also help discover whether the Testator may have written any other Wills. This can be invaluable in assisting the case or confirming your position in claiming the estate.

4. Proof of coercion, reduced mental capacity, or fraud

To prevail in any claim of this sort, you must be able to prove reduced mental capacity or open fraud.

Putting your own personal opinions aside, these cases are notoriously difficult to prove. Consequently, ensure you take the proper advice before filing such a claim.

5. Claims based on promises

If the Testator promised you a specific asset that is not reflected in their Will, or if they didn't leave any Will, then it's vital to gather evidence of the Testator's promise.

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