Can you contest your parent’s will?

If you have been disinherited by your parent’s will, you may have legal recourse through the courts.

There are several ways in which you may be able to contest or challenge your parent’s will and decision to exclude you, but the method will depend upon your circumstances. There are three categories of challenge that you may seek to bring:

1. You may have suspicions relating to the validity of your parent’s will and seek to challenge the will on that basis.
2. You may consider that the terms of the will are unfair and do not provide you with reasonable financial provision. You may, therefore, seek to bring a claim under the Inheritance (Provision for Family and Dependants) Act 1975.
3. Your parents may have promised you inheritance only to find that the will does not provide you with what you were expecting. You may then have a claim for proprietary estoppel to enforce the terms of any promise which you relied upon to your detriment.

Validity of the will

It is possible to bring a claim to argue that the will is invalid. To have what is known as the “legal standing” in which to challenge a will, you will need to be a beneficiary of the terms of a previous will or the laws of intestacy (if there is no will). This is because the terms of any previous will or the laws of intestacy will apply if you successfully invalidate the will in question.

There are five ways in which to challenge the validity of a will:

1. Lack of formality – the will must be made in accordance with Section 9 of the Wills Act. If it hasn’t been signed and witnessed properly, then it will be invalid.
2. Lack of capacity – The testator must have the requisite mental capacity to execute the will. If, for example, they are suffering with dementia at the time the will was executed, then the will can be invalidated.
3. Knowledge and approval – If the testator does not fully understand and approve of the terms of the will then the will may be invalidated.
4. Undue influence – The testator must be making the will of their own free will, and if a third party has forced the testator to create a will contrary to the testator’s own intentions, then the will can be invalidated.
5. Fraudulent calumny – a will can be invalidated if a third party has told lies to the testator about the character of another, and the testator excludes that party in reliance upon those lies.

Claim under the Inheritance (Provision for Family and Dependants) Act 1975

If you were financially dependent on a parent before they died and you have not received ‘reasonable financial provision’ from their estate, you may be able to bring a claim against the estate under the Inheritance Act 1975.

To obtain a provision from the court, you must convince the court that the terms of the will or the intestacy rules do not make reasonable financial provision for you. When assessing claims under the Inheritance Act, the court will consider various factors, namely:

• your financial position
• your immediate and future financial need
• your age
• your state of health
• the nature of your relationship to the deceased.
• the courts will also consider the other beneficiaries of the estate, including their finances, age, state of health and need for provision from the estate in the short and long term
• the size of the estate
• the conduct of the parties.

Anybody can bring a claim under the Inheritance Act, provided they meet the requisite criteria. Spouses and children are automatically entitled to bring a claim, but anybody who has been maintained either wholly or partially by the deceased immediately before their death can bring a claim seeking financial provision from an estate.

These claims are time-sensitive and must be issued within six months of a Grant of Probate or Grant of Letters of Administration being issued.

Proprietary estoppel 

If your parent had made assertions that you would inherit, but the will then fails to adhere to that promise, then it may be possible to enforce that promise via the courts.  

Whilst promises are not generally enforceable, it is possible to apply to the court to enforce the terms of a promise made by another in relation to property if certain criteria are met. This equitable remedy is known as proprietary estoppel. If proven, the courts can order the transfer of land to the person to whom the promise was made or make such other order as it sees fit to remedy the inequity. These situations commonly arise in the context of farming, where the children are often promised the farm in return for them working on the farm, after which the farm owner then reneges on that promise.

To bring a claim under the belief of proprietary estoppel, generally, you must be able to evidence the following:

• That a promise of property was made to you
• That you reasonably relied upon that promise and
• That you suffered detriment as a result.

This area of law is complex, and the merit of a particular case will depend heavily on the specific facts.