I’ve been cut out of the Will! Can I challenge it?

If you feel that you have been left out of the Will of a parent or close family member, you will no doubt feel aggrieved and will want to know what your options are.

In these circumstances, it may be possible to make a claim under the Inheritance (Provision for Family and Dependants) Act 1975. This area of law has been in the news recently thanks to the now infamous Ilott v Mitson case, in which judgment was delivered earlier this year.

Although the ruling in Ilott v Mitson does not mean that a person who has been cut out of a Will has an automatic claim on an estate, it does mean that decisions to cut out children, spouses and other dependents will be looked into more carefully, and possibly more sympathetically. If the Court thinks the decision is unreasonable, it has the power to make an order for provision in favour of the excluded person from the estate.

The 1975 Act limits those who can claim against an estate to certain classes of people. The most common prospective claimants tend to be the spouse or children of the deceased, although the Act provides that other classes of people may be entitled to bring a claim also.

Each case is determined on its own merits. If you have been excluded from a Will, or feel that insufficient provision has been made for you by a Will, you must seek immediate advice from a solicitor regarding whether you qualify as a claimant under the 1975 Act and if it would be worthwhile to pursue such a claim. It is important that you do this as soon as possible, before the estate is distributed and wound up.

If there is such a claim, the executors of the Will need to be notified and the administration of the estate has to be put on hold until the claim is resolved. The executors have a duty to disclose all information about the assets and value of the estate to genuine claimants. Although the claim is against the estate, in practical terms the claim should be viewed as being against the beneficiaries of the estate, because it is their shares which will be diminished if the claim succeeds. It is important to be aware that if you decide to proceed with a claim, this may well worsen your relationship with those beneficiaries.

The law encourages people to try to resolve their differences without going to court. A court claim should be viewed as a last resort. If an agreement can be reached out of court, this can be recorded in a contract or Deed of Variation. If no agreement can be reached, then ultimately a Judge will decide whether or not the person claiming is entitled to a share of the estate, and if so, how much they should receive.

This area of law is complex and ever changing. If you feel you are entitled to challenge a Will, please do not hesitate to contact us today. Our specialist solicitors are on hand to give clear, practical advice.