The loss of a family member is always a sad time, but it may become an even more distressing experience if you find that you have not been included in the deceased’s Will. Sadly, we have seen occasions where an elderly parent has been taken to a solicitor to change their Will, usually to the benefit of one or more of their children and to the detriment of others. Those left out of the Will have had no knowledge until their parent has passed away and understandably suspect that the parent was coerced or confused at the time of making their Will.
In other cases, a parent and child may be estranged over many years and the parent has left the child out of their Will. When the parent becomes ill or other circumstances change, the relationship is mended and the two reconcile, however the parent passes away without ever changing their Will.
In circumstances such as those described above, the child who has not been provided for may wish to consider challenging the Will or contesting the Estate. There are two main ways that this can happen:
- The validity of the Will may be challenged on the basis that the Will maker did not have the legal capacity to make the Will, or didn’t understand what they were signing;
- A claim can be made under the Inheritance (Family Provision) Act on the basis that the Will maker failed to provide for a family member where they had a moral obligation to do so.
If a Will is found to be invalid by virtue of the incapacity of the Will maker, then the estate will be distributed in accordance with the last known valid Will. If no earlier Will exists, then the estate will be distributed as if the deceased died without a Will – generally it is divided between the spouse and children of the deceased.
An Inheritance claim can be made by certain family members including spouses, former spouses, children, grandchildren and in certain cases parents and siblings. To show that you are entitled to receive some benefit from the estate you must show that the deceased had an obligation to provide for you and that you have been left without adequate provision for your proper maintenance, education or advancement in life.
It is important to note that Inheritance claims are subject to strict time limits. So, if you are concerned, be sure to get legal advice as soon as possible or you may be barred from making a claim.