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I Haven't Been Provided for in a Will but Should Have Been, What Can I Do?


A summary of a few of the ways in which the law can help if a deceased person should have provided for you after their death but has not done so.

The death of a family member or someone close to you can be an emotionally difficult time.  This can be made more difficult and stressful if you subsequently discover that the deceased person’s estate did not provide for you as it should have done.  In certain circumstances, the Courts can help.  You may be able to bring a claim against the deceased person’s estate.  If this claim is successful, the Court will order that the deceased’s estate provide for you even if the deceased has not provided for you sufficiently in their last will and testament, or if the deceased did not make a will and you are not provided for sufficiently under the rules of distribution on intestacy.

Inheritance Act Claims

Where the estate of the deceased has not provided reasonable financial provision for you, you may be able to bring a claim under the Inheritance (Family and Dependants) Act 1975.  This Act can assist the deceased’s spouse or those who lived as man and wife for a period of two years immediately before the death of the deceased.  It can also assist the children of the deceased, whether adult or minors, even if the children are completely estranged from the deceased.  The Act can further be used to help provide for those who were financially dependent on the deceased before death.

If the deceased was domiciled in England and Wales and you fall into one of the above categories, you may be able to bring a claim against the estate for reasonable financial provision.  The Court will look at several matters when assessing your claim including your present and future financial circumstances, those of any other people who are bringing a claim and those of any other beneficiaries of the estate.  The Court will also look to see what financial obligations and responsibilities the deceased had to all of the people in these categories, and to what extent you and/or they have any physical or mental disabilities.  The size and nature of the deceased’s estate will determine any awards that the Court makes to you from the estate.

Proprietary Estoppel Claims

If a person has promised you that you will receive a share of their estate, but you find on the person’s death that they have not left you that which was promised, you may have a claim against the estate, even if that claim is against land in the estate.

Ordinarily, the law states that a disposition of land can only be made in writing and only by incorporating all of the terms to which the parties have expressly agreed.  The doctrine of proprietary estoppel enables the Court to provide for a person who was promised land from a person’s estate, but this promise was not in the person’s Will or the person died without making a Will.  At a very basic level, you would have to show the Court that the deceased allowed you to believe that you have, or will have, some benefit in or over the deceased’s property.  You must then go on to show the Court that, relying on that belief, you went on to act to your detriment and the deceased knew that you were acting to your detriment because of that belief.  The Court would then have to find that the deceased person had taken unconscionable advantage of you by denying you the rights in the land which you expected to receive.  The Court may then award you the land, or the rights in the land, which the deceased promised to you.

An Invalid Will

What happens if you find that the deceased person has made a will which is entirely different to what you expected to receive?   You may ask yourself a couple of questions.  First, did the deceased have the mental capacity to make that will?  If the deceased person was suffering with dementia or other mental condition at the time that they made the will, it is possible that they did not have the capacity to make the will and thus the will is invalid.  Second, did the deceased make the will in those terms because they were coerced into doing so by someone else?  If the deceased’s wishes in that will were procured by unacceptable means and the will cannot be held to be an expression of that person’s free will, the Court may hold that the will is invalid.  It should be noted however that for the Court to make such a finding, there must be very strong evidence to show that the deceased was coerced into making a will which he would not ordinarily have made.

If a will is held to be invalid, then the estate of the deceased will be distributed in accordance with the terms of the deceased's previous will. If there is no previous will, then the estate will be distributed in accordance with the intestacy rules.

Please note that the above is a very brief summary of the remedies available to disappointed beneficiaries.  For further information or to discuss a potential claim against an estate, please contact Matthew Morton.

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