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Wills, Probate & Trust

Where there’s no Will, there’s a way

Left out of Will

Friday, October 18, 2019

The grieving process can be traumatic and highly emotional, which can often be made significantly worse once family, friends and loved ones look to sort out the deceased person’s affairs.

From time to time, we deal with families where their loved one did not leave a Will, or in some cases, where they have been left out of the Will entirely.

Another point to consider is that for many couples when one partner passes away, the remaining partner is not entitled to inherit from the deceased partner’s estate under the law of intestacy if they were not married/in a civil partnership.  In other cases, you are not entitled to inherit because you are not the deceased’s own blood child or adopted child.

If you find yourself in this situation, there are a number of steps that you can take.  These include:-

Step 1: Take legal advice from a lawyer who specialises in estates

Step 2: Enter a caveat.

You can put a temporary stop on the deceased’s estate being administered by entering a caveat at the Probate Registry.   A caveat is a notice to prevent anyone being able to obtain a grant of probate (where the deceased left a Will) or a grant of letters of administration (where the deceased did not leave a Will), which means that the estate cannot be administered for 6 months while the caveat is in place.  This will give you time to make investigations to see if there is any merit in bringing a claim against the deceased’s estate.  It also gives time to digest what has happened and to think about what you want to do, whilst protecting your position to bring a claim if you wish to.

Step 3: Obtain information about the Will.

Your lawyer can write to the law firm acting in the deceased’s estate requiring the firm to provide a copy of the deceased’s Will and all surrounding file notes and correspondence; your lawyer can then assess the strength of your case to challenge the deceased’s Will;

Step 4: Consider whether to bring a claim for financial provision under the Inheritance (Provision for Family and Dependants) Act 1975.  It should be noted that a claim must normally be brought within 6 months of the Grant of Probate or Grant of Letters of Administration.  Under this 1975 Act, a court can redistribute assets left under a will or intestacy where an individual has died without making fair and reasonable provision for any of the following people:-

  • A spouse or civil partner.
  • A former spouse or civil partner who has not remarried or registered a new civil partnership (provided a court order was not made at the time of the separation that specifically prohibits them from bringing such a claim).
  • Any other person who was cohabitating with the deceased as ”husband and wife” or civil partner for at least two years immediately prior to death.
  • A child of the deceased.
  • A person treated by the deceased as “a child of the family”.
  • Any other person who immediately prior to death was being maintained by the deceased.

Under the 1975 Act, there is only one ground for a claim for an applicant and that is where the distribution of the deceased’s estate does not make reasonable financial provision for them. The Court must take into account certain statutory guidelines when considering a claim under the 1975 Act. The Court has particular regard to:

  • The financial resources and needs of the applicant and also of other applicants and/or the beneficiaries.
  • The obligations and responsibilities of the deceased towards the applicant and other beneficiaries.
  • The size and nature of the estate.
  • Any physical or mental disability of the applicant or beneficiaries.
  • Any other relevant matters including the conduct of the applicant.

Step 5: Try and negotiate a settlement out of court/through mediation with the beneficiaries of the Will or intestacy.  This would often be done through your law firm and their law firm.  Negotiating a settlement saves the legal costs and stress of going through the court process which can be very expensive and also very uncertain because court decisions depend on what the judges think on the day, can be very hard to predict and may not go in your favour. 

Frequently asked questions

Are adult children of the deceased likely to be successful in a claim against a deceased parent’s estate for financial provision under the 1975 Act?

It can be especially difficult for adult children to bring a successful claim for reasonable financial provision from a deceased’s estate under the 1975 Act because historically healthy adult children have been expected to make their own way in life and would not usually be dependent on the deceased.  It is worth taking legal advice on this point because there have been a few exceptional cases where an adult child has succeeded with a claim.

Can other people including adult children of the deceased bring a claim against an estate if they have acted to their detriment to support the deceased?

Sometimes people act to their financial detriment to support a deceased during the deceased’s lifetime on the deceased’s assurance that they would inherit and so not be out of pocket.  For example, an adult child of the deceased may act to their financial detriment by giving up their job, working part-time, taking a pay cut or moving to an expensive area, or even giving up their home to live in with their parents, in order to care for their parents on the assurance that they would ultimately inherit from their parents and so would be recompensed.  This type of acting to one’s financial detriment on the strength of an assurance from the deceased that you would inherit assets such as property is known as proprietary estoppel and can be the basis of a claim against a deceased’s estate.

It’s always worth taking legal advice on the merits of your case from a specialist probate lawyer so that you will at least know that you have done all you can to protect your position.

At Samuel Phillips Law, we have a highly qualified specialist Wills, Probate and Trusts team who are very experienced in dealing with sensitive and complex situations.  We appreciate the highly emotional and difficult circumstances that many people find themselves in when having to deal with the legalities associated with losing a loved one and aim to make all our clients feel fully supported.

For more information please visit our Wills, Probate and Trusts page or to speak to a member of our team, please call 0191 2328451.

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