​I have been cut out of a Will – What can I do?

​I have been cut out of a Will – What can I do?

As a general rule of thumb, people in England and Wales can leave their property in their Wills to whomever they wish. After all, it is the whole point of going to the cost of having a Will in the first place. The courts can decide if a Will is valid if the deceased's capacity at the time of making the Will was impaired or if it can be proved they were unduly influenced by another to leave their estate to them entirely or in greater measure than they would have done. However, there may be nothing that can be done to overturn the Will itself where these cannot be shown to have occurred.

There may be another legal avenue for someone close to the deceased where they have been cut out of the Will. The Inheritance (Provision for Family and Dependents) Act 1975 allows, in certain circumstances, for payments to close family to be made from the estate despite the intentions of the deceased when they made their Will. It is also possible that promises that were made by the deceased may be enforceable.

Inheritance (Provision for Family and Dependents) Act 1975

The Act makes it possible for close family and dependents, who are not adequately financially provided for under a Will, to apply to the courts for an order that they should receive reasonable provision from the deceased's estate.

A spouse that is not provided for in a will can, generally, expect to receive a considerable payment. The courts are likely to order that provision should be made that is reasonable for the surviving spouse to have, whether or not the spouse is financially secure or not. Children of the deceased, or another dependent relative, might receive a lesser payment that is sufficient to ensure that their everyday needs are paid for.

It is possible, and in fact quite regular, for these types of claims to be brought by several different people against the same estate. This is especially likely to be the case in disputes involving a long-running sibling rivalry and subsequent fallout or a family argument resulting from a newly blended family.

Under the Act, the courts are required to take into account various factors when deciding whether to make an order for provision of the disappointed dependent and if so, the amount that should be awarded.

Even where such an order is made by the courts, the Will, as created and signed by the deceased, remains valid. After the terms of the order have been satisfied, the Will continues to apply to the rest of the estate subject to any further order of the courts. This is true of all gifts under the Will and all powers provided to the Executor(s) of it.

Proprietary Estoppel

A person may be granted relief where there was a "representation or assurance made to the claimant pertaining to an interest in identified property; reasonable reliance on it by the claimant; and detriment to the claimant in consequence of that reliance. The claimant has to show that it would be unconscionable for the person who made the assurance or representation to go back on his word, and deprive the claimant of the proprietary interest he had been led to expect." In plain English, this applies where the deceased made a promise to someone that the Will would leave them something, but the Will did not in fact do so. If the person acted on that promise, and suffered a loss, then they can seek to enforce the promise to receive the property in spite of the Will.

Take for example the model of this family business. If the father is the sole owner and has four children. Children 1-3 each leave home and pursue extremely successful careers in the city. Child 4, however, enters the family business at 16 when he leaves school and remains there his whole life, without taking a wage and living with his parents on the assurance from his father that the business would pass on to him. Father dies and the Will leaves the family business to all four children in equal shares. Children 1-3 are delighted because on top of the city salary; they now have a 25% share of a reasonably successful local business. Child 4 has devoted his entire life to the business without taking a salary and ends up receiving the same share of the business as his brothers and sisters. The rules of equity determine that this is not fair and Child 4 could reasonably make a claim for the entire 100% share of the business.

Again, the Will remains valid; but the specific property in question no longer forms part of the estate.

These are just two of many potential issues that may arise with the passing of a loved one. At Clapham & Collinge LLP, we can provide you with all of the necessary information, support and legal advice on Will disputes and how they can be resolved. If you require advice on Will disputes please contact Tammy Parnell on 01263 820468 or email ttp@clapham-collinge.co.uk