I’m not happy with my late parent’s will, what can I do?

There are many reasons a parent may not have provided for one of their children in their will, which could cause surprise and upset to a son or daughter.  

This could include a family fallout, a parent remarrying, which changes the family dynamic, or a parent simply choosing to leave a child less than they expected.

Katie Lofthouse, associate solicitor in WHN Solicitors’ dispute resolution team, highlights three ways to challenge a deceased parent’s will.

English law asserts the importance of respecting the wishes of a deceased person and therefore there is no legal right for a child to inherit under their parent’s will.

However, there are various potential legal ground to challenge a parent’s will if you are not happy.

1. Inheritance (Provision for Family and Dependents) Act 1975

This Act allows a child of the deceased, along with other strict categories of people, to make a claim against a deceased’s will, should they believe they have not been left ‘reasonable financial provision’. There is no set calculation for reasonable financial provision and each case will be assessed on its own merits.

If the claim is successful, the court will make an award from the estate to the child. There are various factors the court will consider when deciding whether or not to make an award, and there is no guarantee a claim would be successful.

In order to bring a claim under the Inheritance (Provision for Family and Dependants) Act 1975, court proceedings must be issued within six months of the date of the grant of probate.

There are circumstances where the court will accept an application to bring such a claim out of time, however, there is a serious risk of such an application being refused by the court, and therefore it is important to seek legal advice as soon as possible if you believe you have a claim.

2. Promissory Estoppel

If a parent, during their lifetime, promised a child something, but this promise was not reflected in their will, a child may be able to make a claim under promissory estoppel. A key factor in such a claim is that the child acted to their detriment upon reliance of the promise.

A common example used of a promissory estoppel claim is where a farmer has promised their child that they will inherit the farm, providing they assist with farming the land throughout their lifetime.

The child may have given up a better paid career path, in order to work the farm, believing that they would inherit it once their parents pass way, but upon their parents’ death, it transpires the farm has been left to others.

These cases can be quite difficult to prove where a promise has been made verbally, rather than in writing.

3. Claim that the will is invalid

A challenge can be brought to a will on the grounds of validity.  To prove a will is not valid, the court must be satisfied of one of the following:

• The will was not properly executed in accordance with Section 9 of the Wills Act 1837.
• The deceased lacked sufficient mental capacity to understand the will
• The deceased was subject to undue influence when preparing and signing the will
• The deceased did not know and approve the contents of the will, i.e. they signed the will, not knowing that it was not reflective of their wishes

Before challenging the validity of a will under one of the above grounds, it is important to establish the contents of the previous will, or if the estate would fall under the intestacy rules. If the child would only receive the same amount or less, under a previous will or the intestacy rules, such a claim would have no benefit.

Katie works in the dispute resolution team and is based at the firm’s Clitheroe office. 

Her main area of expertise is contentious probate and she is also experienced in a range of litigation matters including personal injury claims, possession matters, settlement agreements, contractual disputes and debt recovery.

If you need help on a contentious probate matter, call Katie on 01200 408300 or email her at [email protected].