Who can Contest my Will or my Estate?

When someone does not inherit from an estate but believes that they should, they may have grounds to contest the Will of a deceased person or contest the law of intestacy if there is no Will.

Whether they will be successful with their claim depends upon numerous factors including whether they were financially dependent upon the deceased, their relationship with the deceased, and their reasons for making a claim against the estate of the deceased.

Examples of when Wills or Estates may be Successfully Contested

A new spouse, not being the biological parent of the surviving children of the deceased, inherits an estate under the law merely because there is no valid Will; or

A person receives no inheritance, but their brothers and sisters do; or

There is an unsecured informal outstanding loan which has not been repaid by the estate of the deceased.

Testamentary Freedom

In England and Wales, “Testamentary Freedom” applies whereby we are free to leave whatever we wish to whomever we wish. This applies UNLESS there are financially dependent individuals left disadvantaged by a death. In this case the deceased has an ongoing financial responsibility to such people. This may be because the deceased provided a home or income to surviving relatives or friends.

The general rule is that if a financially dependent person has not been adequately provided for by a Will or the estate of the deceased, then they have a right to seek recompense from that estate.

This is only right and proper so as not to make someone homeless or leave them without the means to support themselves.  However, it is the other side of the coin which is of greater concern.

Accidental Disinheritance

If someone is estranged from their spouse and they die without a Will, under the law of intestacy the surviving spouse would still inherit all personal belongings and vehicles of the deceased, the first £322,000 of their asset value, and either 50% of the remaining estate if the deceased has children, or the entire remaining estate if there are no children of the deceased. This applies regardless of whether the surviving spouse is the biological parent of the children of the deceased. This is usually NOT the intention of the deceased person. Therefore, it is important not only to ensure that a current VALID Will exists before death, but also additional documentary evidence supplementary to a valid Will which confirms that an estranged spouse should receive no more than they would be entitled to from a divorce settlement.

The same may well apply if you are estranged from one or more of your non-financially dependent children and you wish to exclude them from inheriting any of your estate. 

Protecting your Will against Opportunistic Claims

Finally, simply ignoring someone in your Will does not ensure that they can’t subsequently make a successful claim against your estate. A disgruntled family member could claim that you simply “forgot” to provide for them, or you did so accidentally. However, if you have additional documentary evidence of your intentions, aside from your Will, this provides additional confirmation that the terms of your Will reflect your true wishes.

For further guidance, without fear of consultation fees or obligation, please contact either our West Midlands office or Mid-Devon office here Contact.

Happy New Year.