“I’ve been left out of a Will!”

Left out of a will

An increasing number of grown-up children are finding that they have been left out of their parents’ Wills. With people living longer than ever before, some parents are taking the view that with their adult children being financially stable, their money should instead go to grandchildren, friends or charity. However, the number of challenges to Wills is also increasing.

Generally speaking you are free to leave your estate to whoever you choose. Your parents can completely disinherit you, or leave you a smaller share of their wealth compared to other beneficiaries. However, if you did not receive a share of someone’s estate and you believe that you should have done, or you have good reason to believe that the share you received was smaller than it ought to have been (perhaps because they supported you financially during their lifetime), there are a number of ways that you can challenge their Will.

Claims will be based on either technical reasons (for example, that the Will was not validly executed), a claim that a deathbed gift was made, or a challenge under the Inheritance (Provision for Family and Dependents) Act 1975. We will look at each type of claim in turn.

Technical reasons to challenge a Will

Persuade to sign

There are six main reasons you can challenge a Will on technical grounds, as follows:

Lack of testamentary capacity

For a person to make a valid Will they must:

  • Be able to understand that they are making a Will, and the effect of making that Will.
  • Know the nature and value of their estate.
  • Understand the consequences of excluding/including certain people in their Will.
  • Not be suffering from a disorder of the mind that might influence their views.

These principles were set out in Banks v Goodfellow 1870 and although the law has developed since then, the principles are the same.

Lack of valid execution

There are a number of requirements for a Will to be valid as set out in Section 9 of the Wills Act – these include:

  • The will must be in writing and signed by the testator (the person making the Will), or signed by someone in their presence under their direction.
  • It must appear the testator intended by their signature to give effect to the Will.
  • The testator’s signature must be made or acknowledged in the presence of a minimum of two witnesses who are present at the same time.
  • Each witness must either attest and sign the Will, or must acknowledge the signature in the presence of the testator – although not necessarily in the presence of any other witness.
  • The choice of witnesses must satisfy the rules about who can and cannot witness a Will.

There is a legal presumption that a Will has been validly executed, unless evidence can be provided to show the contrary.

Lack of knowledge and approval

For the Will to be valid, the person making the Will must have knowledge of, and approve, its contents. You can challenge a Will on the basis of lack of knowledge – even if the Will appears to be executed properly, and even if you know the testator was of sound mind. You would need to provide evidence that suggested the testator was not aware of the contents of the Will, or that there were some suspicious circumstances. An example might be if the Will contained a significant gift to someone who helped to prepare it.

Fraud/forged Wills

The Will can be contested if you believe it has been forged or some sort of fraud has taken place. This might be the forging of a signature, for example.

If someone led the testator to believe that certain facts were true and this influenced the contents of their Will, this could be fraud. For example, if Anna tells George that one of his children has stolen money from him, and as a result George leaves the child out of the Will, the Will could be invalid as a result of Anna’s fraud.

Undue influence

You can challenge a Will if someone unduly influenced, coerced or put under duress the person who was making the Will. There is no presumption that just because someone in a position of trust receives assets from another person, that undue influence took place. You must show actual undue influence, where there must be no other reasonable theory to explain the terms of the Will.

Of note, recent case law has seen the courts more willing to accept arguments that undue influence has taken place. A good example is the case of Schrader v Schrader [2013] EWHC 466 (Ch), involving a mother who left her home in its entirety to her son Nick. The Court took the mother’s vulnerability, her dependence on her son Nick, the engagement of a will-writer at Nick’s behest with no prior contact with the family, and Nick’s character and violent history into account when reaching their decision which was that undue influence had taken place. Her Will was therefore found to be invalid, and her estate passed under the terms of a previous Will she had made. You can read more about undue influence, the Schrader case and many other relevant cases here.

Rectification and construction 

Sometimes a Will is drafted up by a lawyer that does not properly carry out the testator’s intentions. This could be either because of an administrative error or because the person drawing up the Will does not understand the testator’s instructions. A claim for rectification or a claim regarding the construction of the Will can be made. If it is not successful, a claim for professional negligence against the lawyer may be appropriate.

As an example, George visits a lawyer and requests that his estate is split evenly between Anna, Heather and Sarah. He also leaves Susie (his dog) to his favourite Niece. George’s lawyer draws up a Will that says George’s estate will be split between Anna, Heather and Susie, leaving ‘Sarah’ to his favourite niece. George does not spot that the names have been mixed up when signing the Will. This is a simple error that can be corrected.

Another example would be if George instructed his lawyer to split his estate between his three children, but only two are named in the final copy of the Will. If the lawyer’s notes are clear, this error would also be correctable.

Deathbed gifts

Deathbed gifts

If a dying person gifts something to you close to their death, this may override their Will. There are a number of conditions for the gift to be valid:

  • The gift must be made with the belief that death is impending in the near future – typically this means a few days (Re Craven’s Estate (No 1) [1937])
  • This belief must exist for a reason (for example, because they are suffering from a serious illness or about to undergo a risky operation).
  • The gift must be conditional on death. For example, the donor might say “if I don’t survive the week, I want you to have my holiday cottage in Cornwall’.
  • The donor must part with dominion over the subject matter of the gift. “The donor must put it out of his power between the date of the donation and the date of his death to alter the subject matter of the gift and substitute other property or chattels for it.” (Re Craven’s Estate Farwell) This could mean actual delivery (for example, giving someone cash) or constructive delivery (for example, giving someone keys or title deeds).
  • The donor must have mental capacity to make a lifetime gift. The standard for this is not as high as for making a Will where the gift is trivial. However, if the donor is giving up the bulk of their estate, the degree of mental capacity will be the same as for making a Will (Re Beaney [1978]).

Note that:

  • The gift can be revoked – either because the death does not materialise (so it is revoked automatically) or because the donor makes the choice to revoke it before their death.
  • If the donor does not use conditional wording (for example ‘this house is yours, Margaret’ – Sen v Headley [1991]) the court is willing to infer the conditional wording, provided that the donor was seriously ill and close to death when making the statement.

If the above conditions are met, provided that the gift is not revoked before death, the donor’s personal representative will hold the gift on trust for you.

In the case of King v The Chiltern Dog Rescue, the claim that a deathbed gift was made failed, because the person who allegedly made the gift – June Fairbrother – was not contemplating her impending death. She had no serious illness or forthcoming operation, and she could easily have remade her Will if she wanted to. However, the claimant – Ms Fairbrother’s nephew – also made a claim under the Inheritance Act (see below) and was awarded £75,000. You can read more about the case and other relevant cases here.

Inheritance Act challenges

You can make a claim under the Inheritance Act if you fall into one of the following categories:

  • you are the spouse or civil partner of the deceased;
  • you are the former spouse/civil partner of the deceased and you have not remarried or entered into another civil partnership;
  • you were living with the deceased for at least two years prior to their death;
  • you are one of the deceased’s child (including adult children);
  • you were treated as the deceased’s ‘child’ (this could be for example adopted, fostered or step-children – other people may qualify); or
  • you were being ‘maintained’ by the deceased – wholly or partly.

The grounds for making a claim is that the Will does not make ‘reasonable financial provision’ for you. This means you cannot simply claim because you feel the Will is unfair or not as you expected. Typically for your claim to be successful, you would need to show that you had a reasonable expectation of having your living costs met by the deceased. If you were financially independent of the deceased before their death, it will be difficult to show that you have a reasonable expectation. However, in Ilot v Mitson the Claimant – who had been estranged from her mother since she was 17 – had a very low annual income which was taken into account. The Court also considered that the Claimant had made repeated attempts to reconcile with her mother, to no avail. Note that Ilot v Mitson will be revisited by the Supreme Court in December.

If you are considering challenging a parent’s Will under the Act, you might want to read the facts of the Ames case as a contrast to the decision in Ilot. In this case the daughter’s claim was unsuccessful – it was held that the daughter was capable of maintaining herself and her lack of job was a ‘lifestyle choice’. It was also noted that the father had helped his daughter set up a business during her lifetime (which she then abandoned).

Considerations the Court must make

When reaching a decision about a claim under the Inheritance Act, the Court must take into account:

  • your financial resources and financial needs, both now and in the foreseeable future;
  • the financial resources and financial needs which any other applicant for an order is likely to have in the foreseeable future;
  • 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;
  • any obligations and responsibilities which the deceased had towards you (or other applicants), or towards any beneficiary of the estate of the deceased;
  • the size and nature of the net estate of the deceased;
  • any physical or mental disability that you or any beneficiary of the estate of the deceased has;
  • any other matter, including your conduct and the conduct of any other person, which in the circumstances of the case the court may consider relevant.

The aim is to balance the interests of all parties affected. One thing the Court can take into account is any letter of wishes left by the deceased alongside their Will. Typically if you want to exclude someone from your Will or leave them a token gift, it is wise to leave a note of your reasons, should your Will be disputed. However, note that while the letter of wishes can be useful to the Court, it is not binding. In the Ilot case, the mother’s letter of wishes clearly expressed a wish that her daughter (the Claimant) should not inherit anything. Regardless of this, after a number of hearings, Heather Ilot was awarded £163,000 in June 2015 – £143,000 to purchase her home and £20,000 cash – at the expense of the three charities that the Mother intended the money to go to. Those charities are appealing the decision.

Orders that can be made

If your claim under the Inheritance Act is successful, the Court has the power to make a number of orders, including:

  • an order that you should receive regular payments from the net estate of the deceased, in amounts as much and for as long as the judge considers to be reasonable.
  • an order that you should receive a single lump sum payment from the estate.
  • an order that a property which was owned by the deceased should be transferred to you.
  • an order for the settlement of any property for your benefit
  • an order that a property is purchased using assets from the estate and transferred to you, or held in trust for your benefit
  • an order that varies an existing pre- or post-nuptial (or pre- or post-civil partnership) settlement to which the deceased was party, for the benefit of a surviving spouse or civil partner, or for a child or step-child of the deceased.

The Court can also make interim orders where it believes you are in need of immediate financial assistance.

What if there was no Will?

If the person died without a Will, their estate would normally be distributed according to the laws of intestacy. This provides that the deceased’s personal property and belongings plus the first
£250,000 of the estate, and half of the remaining estate will go to their spouse or civil partner, if they have one. The rest will be split between their children. The rules are quite complex (you can see a detailed overview here) and it is always advisable to make a Will so nothing is left uncertain.

If the deceased did not make a Will and you believe you should have some or all of their estate, a claim may still be made under the Inheritance Act in the same way as described above.

Time limits

There are strict time limits for all of the different types of claim mentioned above and you must seek legal advice quickly. We can assist whether you are a claimant or a beneficiary under a Will that is being challenged. Call us on 0800 788 0500 for fast advice.

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Avoid challenges to your Will

Whilst some people choose to make ‘DIY’ Wills, we recommend you always speak to a lawyer first – especially if there is any prospect that your Will might be challenged, there is any disagreement in your family, or your assets are complex. April King Legal’s headquarters are in Nottingham and we have locations across the UK. We would be happy to provide advice without obligation at your local office or visit you in your home if this is more convenient – just give us a call or email to make an appointment.

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