If a Child is Left Out of a Will, Can They Contest it?

5th August 2022 Will Disputes

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Any relative left out of a will may be upset with the decision, and may be eligible to make a claim in order to get provision from an estate. However, the process can require court proceedings and may be complicated depending on your relationship to the testator. We recommend seeking legal advice when entering into this process, as any mistakes could lead to time-consuming and expensive repercussions. 

In the following guide, we will explore how a child can contest their exclusion from a will, and what they will need to do to qualify and be successful.

Should I Contest Exclusion from a Will?

The most prevalent reason to claim against exclusion from a will is to reap the benefits of it by becoming a beneficiary, but there are a number of other factors that potential claimants should consider before doing so.

Firstly, this area of the law can be complicated and this should be acknowledged before making the decision to take legal action against your grieving or deceased family members. The testator may have accidentally left you out of a will, in which case, a conversation with the involved family members and executors may encourage them to submit a claim to amend the will by way of a variation or, if there has been a mistake in it, by rectification. See our Will Rectification page for more information.. 

Sometimes, simply discussing your issue can avoid costly litigation completely, and our solicitors often recommend trying everything before taking a situation to court, as this can be a serious commitment.

The expenses of conducting litigation is also a factor that may affect your decision. You should weigh up the value of being included in a will and the financial compensation that it will provide you with against the cost of hiring a professional solicitor. Professional family law solicitors - like those at JMW - can assess your situation and provide insight into this, discussing your chances of success and what you may win if you are successful. Calling a solicitor for advice may help you to make this decision.
 

Am I Eligible to Claim?

Before you can begin to plan any sort of claim, you should first find out if you are eligible. There may be some exceptional circumstances, but generally, you may be eligible to contest a will if your relationship to the testator is as:

  • Spouse
  • Former or unmarried spouse (common-law spouse)
  • Cohabitee
  • Child
  • Biological and non-biological children who were legal dependents
  • Other dependents may be eligible, but should consult a solicitor for an assessment

Additionally, to seek reasonable provision from someone’s estate, the deceased must have been a primary resident of England or Wales. To contest a will of someone who lived and had assets in Scotland or Northern Ireland, there are different rules and you should request advice from lawyers in those regions.

When deciding to make a claim, it is important to note that there is no UK law that states that a parent or family member must leave anything in their will to specific people, no matter their legal relationship to those people. For example, a parent is not legally obligated to name their children as beneficiaries in their will. For this reason, you should enlist legal professionals to assess your situation.

As the testator is not present to determine how much compensation you should receive, the amount will be decided by the court depending on your current financial position, needs and any foreseeable future needs. If you and the deceased were going through a divorce, you could be eligible to claim for the finances you have spent on this, or anything else that they owed you. Again, this will be decided by the court, and you will be expected to provide sufficient evidence of your finances, spending and relationship to the deceased.
 

How to Contest a Will if You Have Been Left Out

When making a claim to contest a will, you should first know what you want from the estate, whether this is money, property or another asset. This will help both you and your solicitors to understand how realistic your claim is in terms of success. Secondly, you must consider any time limits, which for many claims, can be within six months of the grant of probate.

Once you have made the decision to begin your claim - after an initial consultation with your solicitors, they will notify the involved parties and the court, and this should be done at the earliest opportunity.

You will have a maximum of six months from the start of the probate to prepare and enact your claim if it is for reasonable provision from the estate. During this time, evidence will be collected and compiled, and an argument as to why you should receive the compensation will be formed. A successful claim will require strong evidence of your relationship to the deceased, finances, needs and, in some cases, dependency on the deceased.

If the court rules in your favour, you will be awarded something from the estate and will receive the desired finances, property or other assets when they are distributed. You will then be able to use this compensation to pay for your legal fees and whatever else you need (if the other party has not been awarded to pay this by the court). However, if you are unhappy with the result - if the court decides that you should receive less or no compensation - you may be able to escalate the claim and take it a step further if you desire. Before doing so, you should discuss it with your solicitors. 

Visit our Contesting Wills page to learn more about how JMW can help you.

JMW Can Help

The professional wills, trusts and estate dispute solicitors at JMW are experienced with cases disputing wills and can support you in your attempt to claim what you believe should be yours. We can offer expert advice in a format that is easy to understand for those unfamiliar with the complexities of probate disputes law, and will remain transparent with you throughout the entire process.

Our law firm has been recognised by the Legal 500 as one of the top firms in the country, and our successes are testament to this. For help contesting a will if you believe you deserve to be named in it, seek advice and representation from our team. Call  0345 241 5305.or fill out an online enquiry form, and we will get back to you at a convenient time.

 

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