Background to Inheritance Laws
In some countries, forced heirship is imposed, which means that even if you make a Will, irrespective of what it says, part of your estate when you die will pass to certain individuals, such as children or your spouse. England and Wales has for many years recognised that individuals have a certain degree of responsibility to provide for their families when they die, but at the same time it tries to preserve that person’s right to leave their assets to whomsoever they choose when they die. The right to leave your assets to anyone is called “freedom of testamentary disposition”. The Inheritance (Provision for Family and Dependants) Act 1975 seeks to maintain a balance between someone’s right to leave their assets to who they wish but also ensure that family members or others who are financially dependent on the deceased are not overlooked. This is the most recent Act of Parliament on the subject, but follows previous legislation which was historically enacted to achieve this balance. It is possible that another beneficiary of the Will can make a Deed of Variation in favour of someone who they feel has been treated unfairly. If, especially after reading this article, you feel that you have been unfairly treated in a Will, you may be able to make a legal claim on a deceased’s estate. But you will have to act quickly …
What underlies the Inheritance Act?
Put into historical context, men would often be the breadwinners and the women would normally stay at home and look after the children. This valuable contribution to the family home naturally meant that the woman would be unable to generate income of her own to support herself. If a couple were not married when the man died, his assets would pass by the rules of intestacy and it would be unlikely that the woman would receive anything (although the children probably would). Worse still, even if they were married and the man had made a Will leaving his assets to anyone but his family, would it be right to leave that family financially destitute? Whilst this is an extreme example, this is the sort of thing the Inheritance Act is intended to address.
Who can make a claim/application in the case of lack of Inheritance?
There are only a few people who are entitled to make a claim under the Inheritance Act. The categories of applicant are contained in Section 1(1) of the Act. These are:-
- The existing spouse or civil partner of the deceased;
- A former spouse or former civil partner of the deceased, but not one who has formed a subsequent marriage or civil partnership;
- A person who, during the whole of the period of two years ending immediately before the date when the deceased died, was living in the same household as the deceased as the husband, wife or civil partner of the deceased;
- A child of the deceased;
- Any person (not being a child of the deceased) who was effectively treated as a child of the deceased and the deceased stood in the role of a parent; or
- Any person who immediately before the death of the deceased was being maintained, either wholly or partly, by the deceased;
What does the Court take account of?
It is very important to understand that the Inheritance Act does not exist to allow people who think they should have received something more from a deceased’s estate to make a claim. The Inheritance Act exists to assist people who have not received a ‘reasonable financial provision’ from the estate. The law deliberately does not define what a ‘reasonable financial provision’ is. The Courts have repeatedly pointed out in cases that this is not desirable or sensible, as every case and the circumstances of all of the parties to it will differ. Instead, the Court will apply certain criteria and has again in cases pointed out that no particular criterion is more important than any of the others. The circumstances that the Court will take account of are contained in Section 3 of the Inheritance Act and are:
- The financial resources and needs that the applicant has or is likely to have in the foreseeable future;
- The financial resources and needs which any other applicant (as more than one person can make an application) has – or is likely to have – in the foreseeable future;
- The financial resources and needs which any beneficiary of the estate has or is likely to have in the foreseeable future;
- Any obligations and responsibilities which the deceased had towards any applicant or towards any beneficiary of the estate of the deceased;
- The size and nature of the net estate of the deceased;
- Any physical or mental disability of any applicant or any beneficiary of the estate of the deceased; and
- Any other matter, including the conduct of the applicant or any other person, which in the circumstances of the case the Court may consider relevant.
In relation to married couples, the Court will also consider the age of the applicant and the duration of the marriage or civil partnership and the contribution made by the applicant to the welfare of the family of the deceased, including any contribution made by looking after the home or caring for the family. For married couples who have split up and not formed a new relationship, the Court will consider what the position would have been if the marriage had come to an end by divorce.
What can the Court do in cases of disinheritance?
As mentioned above, the Court can make an order which it considers fair and reasonable in all the circumstances to amount to a reasonable financial provision for the applicant for their maintenance. In the case of the spouse or civil partner of the deceased, the Court is not restricted to just this and can make additional order, recognising the special relationship that marriage constitutes, which might not necessarily be restricted to maintenance alone. The Court can make the following orders:
- An order for periodical payments;
- An order for the payment of a lump sum;
- An order for the transfer to the applicant of property;
- An order for the settlement for the benefit of the applicant of such property comprised in that estate as may be so specified (this is often a life interest or occupational right, giving someone the right to continue to live in a property); and/or
- An order varying any settlement which was reached during divorce proceedings or the marriage.
Will I win if I make an application?
It is very easy to establish that someone is entitled to make a claim and normally quite plain to see if a Will does not make a reasonable financial provision. A classic example of this is when someone has been written out of the Will completely. It is more difficult when someone has been left something but it is ‘not enough’ and, connected to this, is the considerably more difficult question – and one which clients understandably find frustrating – of ‘how much’ they should have been left in the Will. As there is such a number of criteria and lots of factual nuances to any case, it is very difficult to predict the outcome from a financial point of view. What can normally be advised upon is a broad range of outcomes, but the amount that is finally awarded is decided on the day of the eventual trial, if a settlement cannot be achieved.
I think I have an intestacy claim. What do I do now?
You have a very strict time limit to bring a claim. This is six months from the date of the grant of probate or letters of administration (if there is no Will). It would be a very rare case indeed where someone was able to bring a claim after this time. These applications can become complex, particularly when some consideration needs to be given to obtaining actuarial evidence. There is a huge amount of criteria that the Court takes into consideration and evidence on all of these is normally necessary. For example, we acted for the severely disabled biological son of the deceased who had been left nothing from his father’s will. Careful consideration of the cost of that client’s future care and the availability of government benefits and grants was very important. It is also not uncommon for other claims to be pursued alongside an application under the Inheritance Act. For example, a claim for proprietary estoppel is not uncommon. Proprietary estoppel occurs where someone has made a financial contribution towards a property with the intention (presumed or actual) of obtaining an interest in that property. This most often arises with cohabiting couples who buy or contribute to property together, but for one reason or another, only one person’s name is on the property. There can also sometimes be allegations of undue influence or a lack of capacity to make a Will, which may impact on its validity. Again, these are considerations to take account of before embarking on any potential claim. Whilst in recent years the Courts have tried to accommodate litigants in person, these sorts of cases are not straightforward debt claims or contractual disputes between people. There are a lot of considerations to take account of and legal advice on these cases is vital. You should seek this as soon as possible, particularly as there is a very short period of time in which a claim can be made.
The future
There has been a noticeable increase in the number of Inheritance Act cases which have reached the Courts in recent years. The reasons for this are likely to be varied but are probably as a result of the changing nature of the family unit and the fact that we have, for several years now, lived in a time of austerity, resulting in an increased number of people living in some degree of financial hardship. In particular, we have noticed that marriage is no longer central to a relationship and that many couples are happy to live as a family without ever marrying. However, this can have unforeseen and undesirable consequences.
An example of an Inheritance Act claim
In one matter, our client was not a joint owner of the property in question. The client’s partner who was the legal owner of the house died without leaving a Will and therefore the entirety of his estate passed to their children, who were well under the age of 18. Our client had no objection to this on the face of it and in fact our client’s intention was to make a Will leaving everything to them. The only concern for our client was that when the children turned 18, they might very well make the decision to sell our client’s only home and there would be little that could be done to prevent this. It was not a case of the client not wanting the children to have the estate when our client died, it was more a concern about the children being influenced by third parties in the future to try and sell the property. The Inheritance Act enabled our client to be able to apply for a remedy from the Court.
Societal changes and Inheritance Act claims
We have also noticed that there is an increased number of disputes arising from family units which include children from previous relationships. This seems to cause contention between siblings and step-siblings. Biological children often consider themselves more entitled to something from the estate than step-children, who might very well have been brought up effectively as the deceased’s own child. Disputes between siblings are also not uncommon, with allegations of unfairness or estrangement being commonplace. The law is constantly evolving and claims of this nature are no different. The 1975 Act has been amended by several Acts of Parliament over the years to take account of the changing nature of society and the family unit. There is no doubt that disputes over inheritance will continue, particularly in times of economic downturn when people do find themselves in positions of financial hardship. A final point to note is that whilst it is impossible to prevent an Inheritance Act claim from arising, particularly as such a claim is contingent on future events and the future financial circumstances of the relevant parties, a properly drafted Will can help to minimise the risk of this.
You might find these posts on Inheritance issues helpful
- Inheritance Act Claims by Adult Children: Miles and Shearer v Shearer
- Disputing Your Mental Capacity To Make A Will
Please feel free to comment below if you have been affected by these issues.
Hi.
My father died about 2 months after my step mum. I think they left mirror wills, in that they both left their estates to each other. The wife part of it to grandkids but rest of estate was added to my fathers. We are still waiting on the will to finish so its probate. My question is if the will states I am to be disinherited, but then that estate falls into intestacy . Do the laws of intestacy still apply regardless of what is stated. A family member did try and change the will but it was to late to be changed. Also does inheritance tax still apply if probate takes over 6 months, with still no sign complete.
Thank you for your enquiry.
Please accept our condolence on your loss.
It’s difficult to answer your question without knowing the full facts of your case. If your father’s Will failed to dispose of his entire estate and as a result a partial intestacy has arisen then that share of his estate will pass in accordance with the rules of intestacy (https://cunningtons.co.uk/intestacy-rules-flowchart/).
Inheritance is charged on the value of the deceased’s estate as at the date of death.
The administration of a simple estate can take up to a year, a more complex estate can take longer.
Thanks for the reply, much appreciated. Yes so she passed and left it to my dad, but he died about 2 months after she did. Her will went to probate all I know is there was provision for grandkids as part of that and the rest went to my dad. My dad knew that he needed to change the will and this was due to be done, but he died before anything could be put in writing and signed(he left it all to his wife). I think her estate needs sorting before they can do my dads. My brother and I are now the elders as all my dads family passed. I think that its probably not a case I was disinherited, but his love was total for his wife. Which was understandable, so my brother and I dont expect to be mentioned. We also dont think he would of left to anyone else. So my question is in his will if he did mention to be excluded and then it falls into partial intestacy, will his wishes be honoured. As you can tell I am still learning.
Thank you for your email. Did your father leave a valid Will? If he did then his estate passes under the terms of that Will. If the Will did not dispose of his entire estate then a partial intestacy arises and the undisposed part of his estate passes under the statutory rules of intestacy. If all the people he named as beneficiaries in his Will predeceased him then the entire estate will pass under the rules of intestacy.
I hope the above has clarified matters for you. If you require any further advise please do not hesitate to contact me on 01376 567280.
Hello
The police are currently investigating my father for historical child abuse against me (I’m 37 now) and for domestic abuse against my mother (physical, psychological, sexual, financial) – both with the total support of my siblings.
When he found out that we were pursuing legal action against him, he changed his will to exclude all of us.
The estate is sizeable but we don’t rely on him for financial assistance.
All four of us have been in therapy for years prior to reporting the matter to the police for the trauma and debilitating effects of his behaviour throughout our lives.
I know he is still alive and so this is all theoretical, but would there be any scope for us to challenge his will? He’s leaving everything to his childhood friends son.
Thank you for your comment.
We are not aware of any legislation or other legal principle that would apply to force someone, even if they had been accused of crimes against their family, to amend or change their Will to leave anything to such individuals. In fact, in this jurisdiction, the principle of testamentary freedom takes precedence. This is the right for anyone to make a Will directing how their assets are to be dealt with when they die. However, some safeguards do exist. For example, the law does recognise that some people, such as the immediate family of or those financially dependant on the deceased, may have a need for financial maintenance from the estate. Such an application could be made under the Inheritance (Provision for Family and Dependents) Act 1975.
Likewise, we are also not aware of any principles that might apply which would mean that a Will would not be valid, providing that all of the “normal” requirements to create a valid Will were observed.
So far as your father is found guilty of offences, there may be recourse for you during his lifetime for damages via both the civil and criminal law. So far as compensation or damages were awarded and became a debt owing by him to any victims, it is possible that the debt would have to be discharged from his estate, if it remained unpaid at the time of his death, before any other gifts in the Will were paid. However, you should not rely on this and we cannot provide legal advice on our website. Whether or not this would happen would also depend on what the estate comprised of (i.e. what assets and liabilities there were) at the time of death, which is not something that can realistically be predicted. You should consider taking legal advice on this point, or taking advantage of victim support procedures that may exist.
My mother passed away on 10.1.23 . The new will dated 13.10.22 states that no provision has been made for me (her daughter) . Previously I would have inherited ⅓ . Estate estimated at £300,000. I have 2 Siblings, each getting ⅓. My children have been left ⅙ each. Mother told me 6 months ago that I would have a trust of approx £30,000. Nothing in will. I am on benefits , mental health struggling on £135 a week Both brothers are solvent and own their own houses.
Thank you for your comment and we are sorry for your loss.
It sounds as though your mother changed her Will to leave what she intended to leave to you previously to your children in equal shares. Someone is entitled to change their Will during their lifetime. Generally, only if there is undue influence or a lack of mental/testamentary capacity would a Will be capable of being challenged as invalid. This is generally a high burden to prove.
If you are in financial difficulty and require maintenance, there may be scope for you to make an application under the Inheritance (Provision for Family and Dependants) Act 1979. In very broad terms certain categories of people (the children of the deceased being one category) can apply for something out of the estate if the Will does not make reasonable financial provision for them.
I wondered if you could please help? My estranged father died one year ago, but by pure chance I only found out last week. No family on his side got in touch to tell me about it. I have a feeling that I was not a written into his will in any way. Can I contest this? I realise that a claim must be made within 6 months but as I mentioned, I didn’t even know he’d passed away. Thank you.
Thank you for your comment. Please accept our condolences.
The starting point would be to ascertain whether a Grant of Representation has been issued in respect of your father’s estate, this can be done by a search at the Probate Registry, from this we will be able to see if your father died intestate (without a Will) or whether he died testate (with a Will).
If your father died intestate then, depending on the value of his estate and the family structure, you may be entitled to a share of his estate. If he died with a Will, and you are mentioned in it, you may be able to obtain a copy of this from the executors or at least confirmation of this.
If there is no grant of representation yet, you might need to consider entering a standing search at the Probate Registry. This will notify you when a grant is issued and therefore when the six month time limit for pursuing an application under the Inheritance Act commences. We have assumed that this is what you mean by “challenging” the Will. Normally a “challenge” to a Will would relate to its validity. An application under the Inheritance Act is not a challenge to the Will in this respect, it is an application for maintenance from the estate. What is broadly relevant in such matters is the financial positions of the parties involved. Perceived moral obligations are given little weight, unless promises or assurances were made during the deceased’s lifetime which the promise acted on to their detriment, in which case a different type of claim may arise.
Although there is a strict six month time limit for an application under the Inheritance Act, such an application can be made out of time with the Court’s permission. However, this is not always easy and it would not be sufficient to merely show that the only reason that an application was not pursued earlier was because someone was unaware of the death. The applicant will have to can show that there is a good claim and identify the consequences of permission not being granted. You state that you were estranged from your father and there are a number of cases on this point. Sometimes the estrangement can be such that in extreme cases, this factor will defeat an application. More often than not, the issue of estrangement has an impact on the value of the claim. The circumstances of the matter have to be considered very carefully, and this normally includes considering the conduct of the parties both during and after the date of death.
If you believe you have a claim under the Inheritance (Provision for Family and Dependants) Act 1975 – see our article here: https://cunningtons.co.uk/inheritance-act-claims-adult-children/ – then please do get in contact and we will be able to discuss the circumstances of your particular case.
Hello,
is it common that a beneficiary of a disinherited will sign an indemnity prior to receiving the proceeds from an estate? (probate was issued Dec 1st, 2021 and no claims have been made and none are expected.)
Kind regards,
Jens.
Thank you for your comment. Whilst difficult to comment without knowledge of the full facts and circumstances of the case I can confirm it is common practice to be asked to sign an indemnity prior to distribution of an estate irrespective of whether there is a chance of a claim against the estate.
It is usual for an indemnity to be signed by a Residuary Beneficiary at the same time as approving the estate accounts. An indemnity would usually indemnify the Executors against any claims, demands or whatsoever in respect of the estate which is about to be distributed. The reason for the indemnity is that the Executors are personally liable if a claim arises and if they have distributed the estate they have no access to estate funds to settle any claims.
If you are in any doubt as to the effect of the indemnity you have been requested to sign please seek independent legal advice.
Hi, I was wondering if I can get some advice on how to deal with a particular situation? I am the eldest of three (29/27/25) and have recently found out that my siblings and I have been removed from our father’s will entirely. We were included in his will up until June 2021 and there has not been any change in our relationship/circumstance apart from the fact that our father got remarried in April 2019. My brothers and I went from receiving equal share assets to nothing at all without any discussion or notice from him.
Our situation is slightly different as our father is still alive and we have tried discussing the matter with him to no avail. The conversations make him feel uneasy and he has often contradicted his wants. He has stated he really wants to rectify the situation to change his will to include us again but is also worried for his wife and her financial stability after he passes away. which is why he is hesitant to make the changes He is a pensioner, recently retired (75 years old) and his current wife is significantly younger (34 years old). She is not a UK citizen, she is from Morocco and is here on a spousal visa.
Having lived in the same household up until early 2022 my brothers and I have witnessed their relationship first-hand. We believe he is being emotionally manipulated by her at times into making decisions, which he previously consulted us; his children about. Now that we do not live in the same household we have also been made aware that if our father was to fall ill then we would not be notified about this by his wife. I would like to make the assumption and say that there is an abuse of power from his spouse which is having a knock-on effect on his physical and mental health.
I do not know where my siblings and I stand from a legal perspective and would like some advice on our rights as his children. What course of action we must take to resolve the current issue we are facing?
Thank you in advance.
Thank you for your comment. We are unable to give specific legal advice on our website. We are only able to provide broad guidance which should not be considered a substitution for fully considered legal advice.
In England and Wales we have complete testamentary freedom meaning we can leave our estates to whomsoever we wish to, there is no legal obligation to provide for any family members.
The Inheritance (Provision for Family and Dependents) Act 1975 sets out that certain classes of persons can make a claim against an estate if reasonable financial provision has not been made for them under the terms of a deceased’s Will, details of which are in the article above. Any such claim should be made with six months following the date of the Grant of Probate in the Deceased’s estate and cannot be made during the lifetime of the Testator.
There are a number of grounds on which a legally valid Will can be challenged, one of them being undue influence. Undue influence is the term given when someone has used force or coercion to make a Testator change their Will to benefit someone, this involves more than persuasion. Undue influence can be difficult to establish as it often occurs behind closed doors and the burden of proof is beyond reasonable doubt. Again such a claim can only be brought after the Testator’s death.
If you do suspect abuse of a vulnerable person there are a number of ways the abuse can be reported and I would suggest contacting an institution such as Age uk for further advice and support.
I need some help. My Mother died last July and I don’t think I have been left anything in her will , could you please advise what I need to do?
Thank you for your comment.
We are sorry to hear of your loss.
You do not explain why you believe that you should have been included in your mother’s Will. This is important. There is no particular right for anyone to be included in another person’s Will. What someone chooses to happen to their property after they die is their personal choice and the Courts will always look to give effect to this. However, there are some certain exceptions.
Some individuals who are in financial need and require something (or something more than they will receive) from the deceased’s estate may be able to make an application under the Inheritance (Provision for Family and Dependants) Act 1975. This is an application for financial support to meet their day to day living to be provided by the estate. The people that are entitled to apply include the spouse, ex-spouse (in certain circumstances), long term partner, financial dependants and children. There are a large number of criteria to consider and the Court will look to balance the needs of all of the effected parties. An applicant would only have six months from the date of a grant of probate or letters of administration to pursue such an application, so it is important to seek legal advice right away to avoid missing this deadline.
If you were made promises or assurances that you would inherit something and acted to your detriment in reliance on those promises, then there may also be a basis to claim proprietary estoppel over some assets or promissory estoppel.
Sometimes, although very rarely, a secret or half-secret trust may have been set up by the deceased. This is where the beneficiaries of the trust created by the Will are not specifically named in the Will itself.
When promises or assurances are made, or in circumstances where there is a possible secret or half-secret trust, you should take legal advice, as there are complicated legal considerations.