Cut off without a penny… Ridley & Hall’s Top Tips for Survival
Your parent passes away – you’re just beginning to process what has happened. Then, another bombshell; their will is read to you, and you don’t feature anywhere in it.
It can be extremely upsetting to learn that your parent has not left you anything in their will, particularly if others, such as your siblings, have been provided for. Not receiving an inheritance comes with obvious financial consequences, but in our experience as contentious probate solicitors, it is just as much (if not more) about the hurt and upset the parent’s decision to exclude a child can cause.
These are our top 3 tips for anyone who finds themselves in this situation.
- Don’t lose it!
You are likely to feel a range of emotions from upset and anger to jealousy towards those who your parent made provision for in your will. Some or all of those people may also be the executors of your parents’ will, as well as beneficiaries.
In our experience, there is very little benefit to losing your temper with others who are involved. Take a moment to breathe and think about your next steps.
- Think about whether things seem fair.
Lawyers talk about “testamentary freedom” which is a doctrine of our legal system which basically describes how a person can make a will and leave their estate to whoever they wish.
The courts have great respect for the doctrine, but they will intervene in certain circumstances; more on that later!
You will know in your heart of hearts whether you feel this is what your parent truly wanted and whether or not the decision to exclude you feels fair or reasonable. This will no doubt help you decide whether to accept the position or to do something about it.
- If you want to understand your rights – take independent legal advice.
If things don’t feel right, you should take advice from a specialist contentious probate solicitor as soon as possible, because time is usually of the essence. Broadly speaking, there are two key legal reasons why you might present a legal challenge, having been excluded from a will.
- A failure to make reasonable financial provision.
These are “Inheritance Act claims”. The law allows certain eligible applicants to apply to court for an order that the estate of the deceased makes financial provision for them. Eligible applicants are: a spouse or civil partner, former spouse or civil partner, a child (whether or not an adult), a person who was treated by the deceased as a child and any other person who was being financially supported by the deceased.
If you are eligible to bring a claim, then the next step is to think carefully and take legal advice as to whether there is merit in bringing a claim. The court has to decide whether the estate fails to make reasonable financial provision for you and this will involve a detailed assessment of your financial circumstances, as well as the size of the estate and the needs and circumstances of other beneficiaries.
- The will is not valid.
The Wills Act 1837 sets out the strict requirements for the creation of legally binding wills. There are several reasons why a will might not be valid and where a court declares that a will is not valid, it is set aside in favour of an earlier will, or the intestacy rules if there is no will.
The most common reasons a will might be invalid are:
- Lack of testamentary capacity
- Undue influence or coercion
- Lack of knowledge and approval of the contents of the will
- Rectification (there is an error in the will, or one made during the preparation of it)
- Forgery and fraud
If you genuinely believe that your parent’s last will may be invalid for one or more of the above reasons, the usual starting point is to instruct a solicitor to investigate whether there is evidence to support those concerns.
There may be other legal avenues for seeking justice depending on your specific circumstances.
If you find yourself in this position and want to speak with a contentious probate solicitor, a specialist at Ridley & Hall will get in touch with you to discuss your concerns in the utmost confidence. Our freephone telephone number is 0800 860 62 65.