The distribution of assets after death often brings not only emotional challenges but also complex legal considerations. One scenario that frequently generates confusion and conflict is when a relative, close friend, or dependent learns they have been excluded from the deceased’s will. Whether intentional or accidental, omissions can spark disputes, raise questions of fairness, and potentially lead to legal challenges through the courts. Understanding what happens in these situations is crucial for everyone involved, from potential claimants to executors and beneficiaries.
There are a multitude of reasons why someone might not be included in a will. Sometimes, the decision is deliberate; the deceased may have become estranged from a relative, disagreed with the person’s lifestyle choices, or felt they had already given them substantial financial support during their lifetime. In other instances, exclusions may be accidental. A will might not have been updated to reflect changes in relationships, such as births, marriages, divorces, or reconciliations.
Occasionally, exclusions can stem from misunderstandings or incorrect assumptions. A testator might believe that a joint asset would automatically pass outside the will, or they might be unaware of the legal entitlements of certain individuals under UK law. Regardless of the reason, the ramifications for those left out can be significant.
In England and Wales, a will is legally binding if it meets specific formal requirements laid out in the Wills Act 1837. These include that the will must be made voluntarily, in writing, signed by the testator in the presence of two witnesses, and appropriately witnessed. Provided these formalities are observed and the testator had mental capacity at the time, the contents of the will, including any exclusions, are generally upheld.
However, this legal sanctity is not absolute. Certain individuals have a recognised right to bring claims against an estate, even if they are expressly excluded from the will. Broadly, the law seeks to uphold both the testator’s wishes and to protect those who might justifiably expect to receive financial support.
Not everyone can dispute a will simply because they are dissatisfied with its contents. In England and Wales, the Inheritance (Provision for Family and Dependants) Act 1975 provides a mechanism for certain individuals to make a claim for ‘reasonable financial provision’ from an estate.
Eligible claimants include:
– Spouses and civil partners of the deceased
– Former spouses or civil partners who have not remarried or re-partnered
– Children, including adult children
– Stepchildren, if they were treated as a child of the family
– People who were financially maintained by the deceased
Each of these categories recognises a different kind of relationship with the deceased, and courts consider specific criteria to determine whether, and to what extent, provision should be made for them.
Aside from lack of reasonable financial provision, there are other grounds on which a will can be contested:
Lack of Testamentary Capacity
A testator must have been mentally capable when drafting their will. This means understanding what a will is, the extent of their assets, and who might reasonably expect to benefit. If a testator lacked this capacity, perhaps due to dementia or mental illness, the will could be invalidated.
Undue Influence
Claims of undue influence suggest that the testator was coerced or manipulated into drafting or amending their will in a way they would not have otherwise done. These are serious allegations and require strong evidence, as courts are cautious in undermining a person’s apparent wishes.
Forgery and Fraud
Allegations that the will, or parts of it, are forged or fraudulent can also be grounds for contest. As with undue influence, a high standard of proof is required.
Failure to Comply with Formal Requirements
If a will is not properly signed or witnessed, it may be invalid. In such cases, earlier wills or the rules of intestacy (the statutory regime for distributing estates when no will exists) may apply instead.
Proprietary Estoppel
In some cases, an individual might have been promised an inheritance by the deceased, and they may have relied on that promise to their detriment. If the promise is not honoured in the will, they might have a claim through the legal principle of proprietary estoppel.
Finding oneself omitted from a will can be distressing, but there are several possible courses of action available:
Negotiating an Agreement
Many disputes can be resolved through negotiation without the need for court proceedings. Mediation is encouraged, and it often leads to a settlement that satisfies all parties while preserving relationships and minimising legal costs.
Making a Claim Under the Inheritance Act
Eligible individuals can apply to the court for reasonable financial provision under the 1975 Act. They have six months from the date of the grant of probate to make such a claim, although the court can allow late claims in exceptional circumstances.
Contesting the Validity of the Will
If there is credible evidence to suggest that the will itself is invalid, it can be challenged on the grounds mentioned above such as lack of capacity or undue influence. If the will is set aside, earlier wills or intestacy rules will determine the distribution of the estate.
Time is a critical factor in dealing with inheritance disputes. A prospective claimant must act swiftly to investigate the circumstances surrounding the will and to lodge any claim within the appropriate deadlines.
The costs involved can be substantial. Legal proceedings are expensive, and losing a case can result in a hefty bill, as the loser often pays the winner’s costs as well. Therefore, careful assessment of the merits of a potential claim is essential. In some cases, claimants may be able to obtain legal expenses insurance or ‘no win, no fee’ agreements to assist with funding litigation.
A contested will inevitably delays the administration of the estate. Probate cannot be completed until disputes are resolved, holding up the distribution of assets to beneficiaries. Furthermore, litigation depletes the estate, as legal fees are usually paid out before remaining assets are distributed. This means that even beneficiaries who are ultimately successful might receive less than anticipated.
Disinheritance or omission is sometimes unavoidable, but there are prudent measures that individuals can take when drafting their will to reduce the risk of dispute:
Clear Communication
Where possible, it can be helpful to explain decisions to family members during one’s lifetime. Although difficult conversations are inevitable, managing expectations may prevent resentment and conflict later.
Letter of Wishes
A non-binding letter of wishes can accompany a will, explaining the reasoning behind certain decisions. Although not legally enforceable, such letters can assist the court and relatives in understanding the testator’s motivations.
Regular Updates
Wills should be reviewed regularly, particularly following significant life events such as marriage, divorce, births, or deaths. Out-of-date wills can more easily give rise to claims of confusion, oversight, or unfairness.
Professional Drafting
Engaging a qualified solicitor to prepare a will significantly reduces the risk of procedural flaws that could later be challenged. They can also help identify potential ‘at risk’ individuals who might bring claims, allowing testators to address these risks thoughtfully.
Executors have a critical but often unenviable role when it comes to disputes over wills. They must remain neutral, fairly administer the estate, and ensure compliance with the law. If a will is being challenged, executors usually need to defend the estate until the court decides the outcome. They also have a duty to try to preserve estate assets and not incur unnecessary costs.
Executors facing a contested estate should take specialist legal advice. Failing to act appropriately can result in personal liability for losses suffered by the estate or its beneficiaries.
Beyond the stern legal processes, exclusion from a will frequently triggers profound emotional fallout. Feelings of rejection, betrayal, anger, and grief intermingle, particularly when family members are involved. Sometimes, decades-old grievances resurface, inflaming tensions that extend far beyond the immediate dispute.
Where possible, adopting a collaborative rather than an adversarial approach may provide a humane path through the turmoil. Mediation and family counselling can sometimes help to maintain relationships, or at least create an amicable resolution to an inherently painful situation.
Being left out of a will can be deeply distressing and bewildering, but clear legal principles exist to manage these situations. Whether or not the exclusion was purposeful, individuals who feel that they have a justifiable claim are afforded avenues to seek redress. Nonetheless, pursuing a challenge is complex, costly, and laden with emotional consequences.
For those writing their wills, thoughtful planning, candid dialogue, and proper legal advice remain the best tools for minimising future conflict. For those left behind, measured response, sound legal counsel, and, where possible, an openness to compromise can help navigate the rocky terrain of contested inheritance. In all cases, a sensitive balance must be struck between honouring the testator’s wishes and achieving justice for those with legitimate expectations.
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