What To Do If You Have Been Left Out of a Will

The emotional trauma of losing a loved one can be compounded if they have left you out of their Will. Realising you have been omitted from a Will can understandably lead to feelings of confusion and in some cases resentment, especially where you had been led to believe you would be a beneficiary of their estate. In this article, we will outline what you can do if you feel your loved one has failed to make reasonable provision for you in their Will and how any claim would be assessed by the Courts.

From the outset, it is important to understand that the legal threshold is set high when it comes to contesting a Will on the grounds of lack of provision. It is not sufficient to state that a Will was merely ‘unfair’, rather several criteria must be met, as we outline below. Assuming that all other grounds for challenging the Will have been considered, including validity on the grounds of testamentary capacity of the testator, undue influence by another person/s, and improper drafting, witnessing, and signing of the Will, bringing a claim for lack of provision under the Inheritance (Provision for Family and Dependants) Act 1975, maybe a valid legal option,

Who can bring a claim under the Inheritance (Provision for Family and Dependants) Act 1975?

The question of who can bring a claim for lack of provision being made in a Will or being unfairly left out of a Will firstly depends on their relationship to the deceased. The 1975 Act states that the following people can bring a claim:

1. the spouse or civil partner of the deceased;
2. a former spouse or former civil partner of the deceased (but not one who has formed a subsequent marriage or civil partnership)
3. a child of the deceased
4. any person for whom the deceased stood in the role of a parent
5. any person who was being maintained wholly or partly by the deceased

What will the court take into consideration when assessing an application for lack of provision under the 1975 Act?

The Court will look at a range of factors to determine if any claim for lack of provision is valid; the most important of these being the financial resources and needs of the claimant. As such, they will draw a considerable distinction between parties with strong independent financial means and those with little wealth and high needs (for example, in the case of an individual with lifelong care needs). The Court will also have regard to the:

1. financial resources and needs of any other applicants and existing beneficiaries
2. specific financial obligations and responsibilities
3. size and nature of the estate
4. physical or mental impairment of any applicant or beneficiary

The Court will also consider the age of the applicant, duration of the marriage or civil partnership (as applicable), and any contribution made by the applicant to the welfare of the family of the deceased.

The need for a claimant to prove financial need won’t apply to the spouse or civil partner of the deceased, but any other applicant would be required to do so. This is where the ‘maintenance standard’ (maintenance refers to the day to day living needs of the applicant) is applicable, as established in the case of Ilott (Respondent) v The Blue Cross and others (Appellants)  – see below for more details.

What does the Ilott case mean for applicants for whom adequate provision was not made in a Will?

The Ilott case involved a daughter seeking changes to her mother’s Will. She had been estranged from her mother (the deceased) for 26 years. The mother had made the deliberate decision to omit her daughter from her Will due to the length of the estrangement, instead leaving her estate to charities. In this case, the decision for the Courts centred around the extent of maintenance owed to the claimant. The initial judge made an award of approximately £50,000 from an estate valued at around £480,000, however, this was appealed by the claimant. The Court of Appeal determined that the previous decision was incorrect and awarded £143,000 to the claimant, to allow her to purchase the house in which she and her family resided, in addition to further instalments of maintenance. The Supreme Court then heard an appeal against this subsequent verdict and restored the original decision.

As part of its judgement, the Supreme court reiterated that it is not able to change a Will on the basis it is not fair or that the deceased ought morally to have made other provisions. If a claimant is financially independent and has no need for maintenance, it is unlikely changes will be ordered; but the behaviour of the parties will be considered in this decision. The judgement also reiterated that the Courts will not typically grant an award over and above that needed for maintenance (i.e. no appreciating capital or assets).

In conclusion

As we have established, the current law and case precedents make it difficult for any party to contest a Will on the basis of insufficient provision being made. An award will not be made on the basis of morality or fairness and will not lightly disregard the intent of the testator. However, there are some grounds which may lead to a Will being altered.

This is a complex area of law, and, as such, any individual/s considering contesting a Will must do so with expert legal guidance. While it may be possible to bring a claim based on insufficient provision, it would be prudent to rule out all other options before pursuing this avenue.

To arrange an initial appointment with our expert Solicitor, Jacqui Forrest, please telephone 01202 802 807.