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

When can a child contest a will? In the following guide, we explore the details of how this applies in England and Wales, and explain what children of a deceased person will need to do to challenge a will successfully and receive a distribution from the estate. It is important to note that these laws may not apply in the same way in Scotland.

Should You Contest Exclusion From a Will?

The most prevalent reason to take action against exclusion from a will is to claim finances that you may have been relying on to live, 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 that may involve your grieving 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.

Alternatively, they may give you a gift from their own inheritance to account for this oversight. 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 are 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 will disputes solicitors - like those at JMW - can assess your situation and provide insight into this, discussing your chances of success and the money you can expect to receive if you are successful. Calling our team for advice may help you to make this decision and understand whether or not you are able to claim. Sometimes, we may be able to assist on a no win, no fee agreement, depending on your circumstances.
 

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.

Can a Grandchild Contest a Will?

In England and Wales, grandchildren do not have an automatic right to inherit from their grandparents' estates. However, they can contest a will under certain conditions. If a grandchild was financially dependent on their grandparent or if there was a promise made that they would inherit a specific asset, they may have grounds to make a claim under the Inheritance (Provision for Family and Dependants) Act 1975. This law allows certain individuals to contest a will if they haven’t received reasonable financial provision. Grandchildren contesting a will should seek expert legal advice, as the process is complex and requires substantial proof to support the claim.

Can a Step-Child Contest a Will?

Step-children in the UK are considered in a similar light to biological children under the Inheritance Act 1975, which means they are eligible to contest a will if they believe they have not been adequately provided for. However, for a step-child to make a claim, they must have been treated as a 'child of the family' by the deceased. This generally implies that the step-child lived in the same household and was brought up by the deceased acting as a step-parent. Each case is unique, and step-children are encouraged to consult with a solicitor to understand the merits of their claim.

Can a Child Who Was Given Up for Adoption Contest a Will?

Can an adopted child contest a will? Yes, but only the wills of their adoptive family. Once a child is legally adopted, they lose the right to inherit from their biological parents' estates under UK law. Their right to inherit will be from their adoptive parents instead. However, there might be exceptional circumstances where the biological parent explicitly included the child in their will or made promises of provision. In such rare cases, it might be possible for an adopted child to contest their biological parent's will to receive this financial provision, but they would need to seek professional legal advice for a thorough assessment
 

How Can a Child Contest a Will if Excluded?

When contesting a will or making a claim for financial provision, you should first know what you want from the estate, whether this is money, property or another asset. This will help you and your solicitors understand how realistic your chance of success is in making a claim. 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 you will have an initial consultation with your solicitors, after which they will notify the involved parties and, in due course (if needed), the court. This should be done at the earliest opportunity to stay ahead of any deadlines that apply.

You will have a maximum of six months from the Grant of Probate to prepare and enact a claim for reasonable provision from the estate. During this time, evidence will be collected and compiled, and an argument as to why you should receive funds from the estate will be formed. A successful claim will require strong evidence of your relationship to the deceased, including the nature of your financial dependency, and details of your finances.

If the court rules in your favour, you will be awarded assets from the estate and will receive funds, property or other assets when they are distributed. 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 case 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 disputes solicitors at JMW are experienced with cases involving challenges to wills and can support you in your attempt to claim the finances you need and deserve. 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 a testament to this. For help contesting a will or making a claim for financial provision, seek advice and representation from our team. Call 0345 872 6666. or fill out an online enquiry form, and we will get back to you at a convenient time.