In depth

I’ve been excluded from the Will, what can I do?

Gateley Legal

In these difficult economic times, many adult children rely on financial support from their parents more than ever. It can therefore come as a shock to many when they are excluded from the Will.

It may be that their parents feel that they have helped certain children out during their lifetime and therefore choose to favour their other children in their Will in order to even things out; or simply that they don’t feel they have had the support from their children. At first blush this seems perfectly reasonable and it is difficult to see why this would be challenged.

Excluding an adult child who is in financial need can leave them in a difficult situation with nowhere to turn to for financial support. This can be exacerbated by feelings that they have been badly let down by their parents, and even abandoned by them in favour of their sibling with whom they may share long-held grievances. Their only option may be the Inheritance (Provision for Family and Dependants) Act 1975 (“the Act”).

If you find yourself in this situation, the Act allows children to bring a claim against the estate for reasonable financial provision if the Will, or intestacy rules if there is no Will, have not provided them with this.

In order to bring a claim under the Inheritance Act 1975 you must demonstrate:

  • you were a child of the Deceased and/or financially maintained by them;
  • the Will or intestacy rules have not made reasonable financial provision for you; and
  • you must demonstrate that you are in need.

The Act does not look at whether the Deceased was morally wrong to not provide for a child but focuses on the needs of the child and whether these needs have been met. You will therefore need to provide the Court with full disclosure of your income, savings and outgoings (and those of your spouse or partner) in order for the Court to make an assessment. In deciding whether reasonable financial provision has not been made, and if so, what that provision should be, the Court will consider a number of factors which include:

Factors the court will consider in an Inheritance Act claim

  1. the financial resources and financial needs which the child has or is likely to have in the foreseeable future;
  2. the financial resources and financial needs which any other applicant under the Act has or is likely to have in the foreseeable future;
  3. 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;
  4. any obligations and responsibilities which the Deceased  had towards any applicant or any beneficiary of the estate of the Deceased;
  5. the size and nature of the net estate of the Deceased;
  6. any physical or mental disability of any applicant or  beneficiary of the estate of the Deceased;
  7. any other matter, including the conduct of the applicant or any other person, which  the court may consider relevant.

Other factors to be aware of are before bringing a claim against the estate are:

  • The parent must be Deceased . You cannot bring a claim under the Act if they are still alive, although it is sometimes helpful to get advice early on.
  • The Deceased has total freedom to leave their estate to whoever they choose and simply being a child of the Deceased is  not enough to bring a successful claim. A child has no entitlement, although a parent will be expected to provide for a child under 18 years old.
  • You must bring a claim within 6 months of the Grant of Probate/Letters of Administration. There is no guarantee that late claims will be allowed to proceed as you must provide a compelling explanation for the delay and demonstrate the strength of your claim, which is not easy.
  • If you are in receipt of benefits you should ensure that any award you receive does not impact your benefits as sometimes this can leave you in a worse of position.
  • If the child was estranged from the Deceased, this can make it far less likely that they will be awarded anything.  A child will also be expected to show some form of moral obligation was owed to them by a parent.
  • Do not expect a lump sum. As these claims are based on a child’s maintenance needs it is far more likely the Court will award income payments (though these may be paid in one lump sum) or a life interest in a property rather than a property outright.
  • Paying the legal costs in such claims can be difficult if not impossible. If you were able to pay the legal costs you probably would not meet the criteria to bring a successful claim. Our team are aware of these difficulties as a result of which we can offer Conditional Fee Agreements (“CFA”) also known as no win no fee arrangements. We do usually need some payment upfront in order to assess the merits of the case and gather evidence. If we feel the case has good prospects of success after our initial assessment and a careful review of the evidence then we can offer a CFA.

Although this article focuses on claims by children, claims under the Act are not limited to them. Applicants can also include the following:

  • Spouses
  • Civil partners
  • Former spouses and civil partners
  • Anyone treated as a child of the Deceased
  • Cohabitants (often wrongly referred to as common law husband/wife), 
  • Anyone in a relationship and living with the deceased two years before their death
  • Anyone who was financially dependent on them

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