Being excluded from a will is upsetting. It does not automatically mean the will is invalid or that you have no legal remedy.
The death of a parent is difficult enough without discovering that you have been left out of their will.
Many people contact us in the days or weeks after probate has begun, convinced that the will must be wrong because it does not reflect what they had always been told, or because a sibling has inherited substantially more than everyone else.
One example, based on the types of matters we regularly advise upon, concerned an adult daughter whose mother had died leaving her entire estate to one son.
For many years, the family had assumed that both children would inherit equally. The daughter had not been estranged from her mother, although she lived some distance away and saw her less frequently than her brother, who had remained in the family home well into adulthood.
The daughter was understandably shocked by the contents of the will. Her immediate concern was that her brother must have persuaded their mother to change it.
When we first met, however, we explained that disappointment alone would not justify bringing legal proceedings.
Our first task was to understand why the will had changed.
We obtained a copy of the previous will, the file from the solicitor who had prepared the later will and the available medical records. We also took detailed witness evidence from family members, neighbours and friends who had regular contact with the deceased during the final years of her life.
The evidence did not support concerns about mental capacity. Nor did it suggest that the will had been prepared in suspicious circumstances.
Instead, the solicitor’s file recorded a series of appointments over several months. During those meetings, the deceased had consistently explained that her son had provided significant day to day care following the death of her husband. He had reduced his working hours, maintained the property and supported her through increasing ill health.
Whether others agreed with that decision was not the issue. The question was whether it represented her own wishes.
On the available evidence, it did.
That did not necessarily bring matters to an end.
Although there was no realistic basis for challenging the validity of the will, we considered whether there might be a claim under the Inheritance (Provision for Family and Dependants) Act 1975.
That required a different analysis altogether.
Rather than examining how the will had been made, the focus shifted to whether the financial provision made for the daughter was reasonable in all the circumstances. Her own financial position, the size of the estate, the competing needs of the beneficiaries and the nature of her relationship with her mother all became relevant.
After reviewing the evidence, we advised that the prospects of success were limited.
The daughter was financially secure, owned her own home and had been independent for many years. The estate itself was relatively modest. Pursuing litigation would have involved significant legal costs with no guarantee of improving her position.
That was not the advice she had hoped to receive.
It was, however, the advice she needed.
Although disappointed, she decided not to pursue a claim. Instead, she sought to rebuild her relationship with her brother and avoid a dispute that would almost certainly have consumed much of the estate.
What legal issues arose?
Being excluded from a will can raise a number of different legal questions, including:
- Whether the will is valid.
- Whether the deceased had the mental capacity to make it.
- Whether there is evidence of undue influence or suspicious circumstances.
- Whether an earlier will exists.
- Whether a claim under the Inheritance (Provision for Family and Dependants) Act 1975 may be available.
The answer will depend on the evidence, not simply on whether the outcome appears unfair.
What can we learn?
Families often assume that an unequal will must have been brought about by pressure, manipulation or declining mental capacity.
Sometimes that is the case.
Often it is not.
Parents are generally free to leave their estate as they choose, provided they have the necessary mental capacity and understand the effect of their decisions.
Where concerns arise, careful investigation is essential before deciding whether legal proceedings are appropriate.
In some cases, the evidence supports a claim.
In others, the most valuable advice a solicitor can give is that litigation is unlikely to achieve the outcome the client hopes for.
Concerned about being left out of a will?
If you have been excluded from a will, received less than you expected, or have concerns about how a will was made, we can help you understand your position and the options available to you.
Speak to our contested probate team about your circumstances and what steps you may be able to take.
