Being left out of the will or being allocated a much smaller amount than anticipated can be difficult to come to terms with. Especially, if you believe you should be the one applying for probate.
The steps available to you will vary depending on your relationship with the deceased. For example, the process for a child of the deceased will differ from that of a more distant relative. In any case, the first step is to contact a solicitor who can provide expert guidance.
Alternatively, you might be included in the will but wish to decline your inheritance, or perhaps you’re in the process of drafting a will and prefer that your next of kin not inherit from your estate.
Before contacting a solicitor, read on to learn more about your options, whether you’ve been left out of the will, received a smaller inheritance, or are considering other aspects of estate planning.
Not legally entitled
In England and Wales, parents have no legal obligation to make provisions for their children in their will. However, in the case of disinheritance- being completely left out of the will, there are some steps that can be taken.
Firstly, if you have been left out of the will you can pursue legal action to challenge your parents will. There are three challenges that you can bring to the courts.
- You have suspicions based on the validity of the will: you can challenge a will if you think it’s invalid but there are only certain ways it can be invalid:
- the person making the will wasn’t of a sound mind.
- The person making the will did not approve the contents of the will.
- The will was forged.
- The will was made due to pressure from a third party.
- You consider the terms of the will unfair as they are not providing you with reasonable financial provision
- You were promised an inheritance but the will does not reflect what was promised
If you are written out of the will, you should submit a claim but do not delay as you have 6 months from the date probate is granted.
Property estoppel: making a claim for what was promised
If a will does not reflect what was audibly promised to you, you may be able to make a claim under Proprietary Estoppel. This type of claim, if successful, could result in the promised property being transferred to you by the court.
But what are the three rules of proprietary estoppel?
- Assurance- A promise must have been made to the claimant, and this must be proved. One way of proving this is having a third party present (who doesn’t benefit from the case) who will provide evidence that a promise was made to the claimant.
- Reliance- the claimant must be able to prove that they relied on the promise being kept. This means that the claimant must be able to demonstrate that the promise led to some life-changing decisions to be made.
- Detriment – The claimant must be able to prove that they acted to their detriment Meaning that the claimant would have made certain life decisions like rejecting a job offer due to the assurance of the promise made.
What to do if you don’t want your inheritance
With an estranged parental relationship, you might decide to not accept your inheritance. Instead, you might choose to:
- Accept it then give it away
- Refuse it so it is re-distributed with the remaining people in the will
- Post-death variation- this is a good option as it reduces inheritance tax, it is a written document that changes how the inheritance is distributed. A second benefit of this option is that you choose who your inheritance goes to.
You don’t want your next of kin to inherit your property and belongings
It is important to make a will as without it your estate will be distributed via intestacy rules.
In the event that your beneficiaries are unable or unwilling to inherit your estate, ensure that you have substitute ‘beneficiaries’ in place.
Legally speaking, you are not obligated to have your next of kin in your will. You can choose to pass on your inheritance to more distant family members, friends or charities. Also, you can legally change who your next of kin is in your will and through other legal documentation.
When disinheriting relatives, it’s important to have valid reasons and ensure your will is processed through a solicitor. If your will is later contested in court by your relatives, the court will assess whether your decision was reasonable. Proper legal guidance can help safeguard your wishes and ensure they stand up to potential challenges.
Final thoughts
Whether you are making a claim under Proprietary Estoppel to challenge a will or are in the process of refusing your inheritance, there are clear steps you can take. Equally, if you are in the process of writing your will and wish to change who your next of kin is, you will be protected by law as long as your wishes are reasonable.
With everything make sure to validate your will and navigate the whole process with a solicitor.
For more information on navigating wills and what course of action to take contact Citizens Advice or call 0808 223 1133.
