My Parent has excluded me from their Will. Is there anything I can do?
It is inevitably emotional when a parent dies. But what happens if you discover the further painful reality that you have been excluded from their Will?
It is the last thing many people want to consider at such a difficult time; however it is important to understand your rights and the possible actions you can take in the face of exclusion.
What can I do?
Inheritance (Provision for Family and Dependants) Act 1975
The legal position is that any child of the Deceased can theoretically put forward a claim under this Act. If you believe that you should have been included in the Will, then you have 6 months from the date of Grant of Probate to issue your claim. If you have missed this deadline, you can apply to the Court for permission to bring an action outside of time, but this is another layer of legal work and it is always preferable to issue within the 6 months.
Validity of the Will
Another route to challenging the Will could be on the grounds of validity. This could be a challenge that it was not properly witnessed, that the Deceased lacked capacity at the time of making the Will, or, perhaps, they were coerced or unduly influenced to make a change to exclude you.
There is no 6 month limitation for a claim under validity, but as with most areas of law, it is best to act swiftly. You can ask for a copy of the Will file, if it was drafted by legal professionals. You could submit a Larkes v Nugus request to find out what the circumstances surrounding the Will drafting were. These actions could highlight support for a validity dispute.
What Should I do?
Whilst you could have a route to challenge under one of the above heads of claim; should you pursue these?
Recent case law has put emphasis on the testamentary freedoms of individuals. It is considered important to preserve a persons right to leave their Estate to whom they want, and the Court should not routinely override these wishes on Death.
If you can show that there is a clear question over capacity, then there are grounds to argue that the Will is not necessarily a clear reflection of their wishes. This arguably provides a strong basis to dispute the content of the Will.
If the focus is largely on the Inheritance Act, then a full picture of the surrounding circumstances, along with your financial needs and the competing financial needs of the alternative beneficiaries will be relevant. This is not to be taken lightly and you should be prepared to argue your case for an interest under the Will.
If you believe you have a potential case, then you should seek advice from a legal professional as early as possible.
Important points
Litigation, especially over a Will, can seem daunting. It is important to remember that there are many steps before you end up in a Court room.
Much of the work for Contentious Probate lawyers is focussed on mediation, negotiation and settlement. A large proportion of Will disputes end in settlement and this can offer a relatively low cost alternative to full Court proceedings, providing much needed financial stability after the shock of being disinherited.
If you have concerns after being excluded from the Will of a Parent, or indeed any concerns over a Will, do not hesitate to contact our team on 01903 229999 and we would be pleased to discuss your case.