Discovering that you have been left out of a loved one’s Will can come as quite a shock to anyone who has assumed, or even been told, that they are destined to inherit.
But generally, an individual has the right to leave their estate to anyone they want to in their Will; be that their family members, their best friend, a charitable cause that is close to their heart, or even the local dogs home. This is called ‘testamentary freedom’ and it’s the very principle that underpins all inheritance and succession laws in England and Wales.
But what if you had made life plans based on the promise or assumption of inheritance? Or you suspect there has been coercion from another party that resulted in your removal as a beneficiary? Here we assess the rights an individual has to contest the content of a Will in these circumstances, and what processes should be followed if you have doubts about a Will’s validity.
First steps
It is always recommended that families discuss testamentary arrangements and plans for the future upon the creation or subsequent amendment of a Will. In reality, however, people often choose to keep such things private (as they are entitled to do), especially if they know that their decisions will cause upset and unrest amongst others.
Therefore, many would-be beneficiaries are blindsided by their omittance from a Will and won’t even discover this is the case until it reaches probate.
The law states that it is the last Will of a person must be followed unless it can be proven to be invalid.
However, if there is a genuine concern as to why someone has been left out of a loved one’s Will, every effort should be made to understand why, in order to rule out instances of coercion, diminished mental capacity, or outright fraud.
Talking to those appointed as executors at an early stage and reviewing previous Wills can help a beneficiary to understand what has happened.
People are sometimes informed that they have been named as a beneficiary in a Will but will not always be told if they have been removed from a later version, as there is no legal requirement for the testator to tell their beneficiaries that a new Will has been made.
Each time a Will is revised the previous version will be revoked but especially where a professional has prepared the Will, there should still be copies of it, together with file notes available which help to build a timeline of events and clarify any anomalies or uncharacteristic behaviour. This can influence how to best proceed with the matter.
Challenging a Will
It is possible to challenge the distribution of an estate under the Inheritance (Provision For Family and Dependants) Act 1975 (often called just the ‘Inheritance Act’), which gives the Court in England and Wales the right to intervene with the distribution of someone’s estate and make its own judgment on who the beneficiaries should be.
Many such disputes arise from re-marriage, where children or spouses from different relationships challenge a Will that they feel is unfair; but the terms of the Inheritance Act can also be used to make a claim when there is no Will.
Where there is no Will, intestacy laws come into play which determine how the estates of those who die without having made valid Wills are distributed. As these are not reflective of modern relationships, cohabitees will find themselves excluded and a claim may be the only option available.
Individuals able to bring a challenge under the Inheritance Act are:
- Spouses or civil partners (or long-term partners), should the Will of their deceased spouse/civil partner or cohabiting partner fail to make reasonable financial provision for them.
- Anyone who was being financially or physically maintained or cared for by the deceased (e.g., an elderly or infirm friend)
- Young children or stepchildren who had been reliant on the support of the deceased, but for whom the estate did not provide (claims of this nature from adult children are much more difficult to prove but can succeed.
Time limit conditions must also be met in order to successfully challenge under the Inheritance Act, however. Any claim for financial provision should be made within six months from the date that probate is granted. It is possible to obtain the permission of the Court to bring a claim after this time limit but it is best not to need to get over that extra hurdle. For a cohabitee to claim, they must be able to prove they lived as husband and wife in the same household for at least two years immediately before their partner died.
The number of claims under the Inheritance Act 1975 has risen steadily in recent years, but it’s important to remember that even if an Inheritance Act claim succeeds it does not strictly invalidate the entirety of the Will. The Will itself still stands as was, except for any changes made by the Court.
Is the Will valid?
Contesting a Will to challenge its validity can be an uphill battle that should only be entered into with extreme caution and careful consideration. To do so, the claimant must be convinced that the potential gain from contesting the Will far outweighs the personal, legal and emotional cost involved.
For example, should an individual successfully challenge a Will, so that it is invalid, then the estate will automatically be distributed in accordance with the deceased’s last valid Will. If no such Will exists, then the rules of intestacy will apply. Do they still stand to benefit from the last Will or under intestacy? Is it really worth the effort?
For such a claim to succeed, coercion, diminished mental capacity, or outright fraud must be proven, which can be difficult to do in Court. Engaging expert legal advice as to how realistic your chances are of challenging the Will is recommended and the realistic benefits of doing so will be vital. Such specialists will be best placed to also advise on any other alternative courses of action.
Proprietary Estoppel
The financial implications for beneficiaries who have counted on receiving a legacy and who have made financial plans accordingly can be far-reaching.
Where this is the case, the legal doctrine known as ‘proprietary estoppel’ may be relevant.
‘Proprietary estoppel’ applies where an individual has been promised that they will be included in a Will and has relied on that promise, subsequently acting in a way that they may not otherwise have done, in other words, acting to their detriment.
For example, consider a son or daughter who has dedicated themselves to working for the family business for little return, on the understanding that the business would pass to them after their parent’s death. They may have made financial or lifestyle choices based on the belief they would inherit the business, only for it to be left to someone else in the Will. This would place that person in a weakened financial position, without the means they believed they had rightfully earned and had become reliant upon.
In such instances, a ‘proprietary estoppel’ claim can be brought to assist any person or persons who have been cut out of a Will and left vulnerable because of it, by awarding them property or a sum of money, regardless of the Will’s contents.
There are three components to proprietary estoppel which much be satisfied in order for a claim to be made:
- a promise was made by the deceased to the beneficiary;
- the promise was relied on to the detriment of the beneficiary; and
- it would be unconscionable for that promise not to be honoured.
Irrespective of the unique circumstances, any dispute surrounding the omittance from a loved one’s Will can stir strong emotions and foment a sense of injustice, but each case is judged on the facts. Therefore, claims must be proportionate and credible, based on reliable evidence to be successful.
As the saying goes, planning is everything. To help prevent the possibility of inheritance claims, estate planning involves having properly drafted and executed Wills up to date which are kept up to date. It may also be worth sharing your plans with your extended family. A difficult conversation now may potentially forestall any later disputes.
Case studies
Where a claim is made under the Act, the Court can exercise discretion and award reasonable financial provision out of the deceased’s estate, whether there is a valid Will in existence or not. However, two recent cases highlight the challenges involved in predicting the outcome of such action.
For Carole Anne Taylor, who lived with her partner James Redmond for seven years before his death, a claim for financial provision was successful. She was able to show they had lived as a couple and that she had cared for him when his health failed, and that she had limited retirement income and nowhere else to live. The estate had been left to Mr Redmond’s two daughters, who insisted on selling the property the couple had shared, forcing Ms Taylor to move in with her son.
The daughters challenged the initial ruling, arguing that Taylor was just one of many girlfriends. However, the Judge said their evidence lacked credibility and ruled that Taylor should receive regular payments to top up her pension income and a capital sum to enable her to buy a property, with the property reverting to the daughters upon her death.
In contrast, when Danielle Ames claimed that her father should have provided for her, instead of leaving his entire £1m estate to his second wife of 30 years, she was unsuccessful. Her claim was based on having previously worked for one of her father’s businesses and his ongoing contribution to her maintenance. She argued that being left out of his Will left her facing crushing debts and a shortfall of £2,000 per month. She claimed £300,000 as reasonable financial provision but failed to convince the judge, who dismissed the case and stated that her lack of income was a ‘lifestyle’ choice. The Judge also questioned the extent of the contact and the warmth of the relationship she had with her late father.
If you require advice in planning your estate, making a Will, or contesting an existing Will, please contact us on 01733 888888.
