We are often asked, ‘What can I do if I’ve been cut out of a will?’ As with most legal queries, the answer very much depends on the individual facts of the case.
The general rule is that you can leave your property to anyone or anything you want: your next door neighbour, your pet dog or the local donkey sanctuary. It’s your money and you can do what you like with it.
Lawyers refer to this a ‘testamentary freedom’ and it’s an ancient legal principle that underpins inheritance and succession law in England and Wales.
However, the principle of testamentary freedom can come as quite a shock to people who assume that they are destined to inherit, especially those who regard themselves as next of kin.
It is not unusual to hear children complaining about their parents spending ‘their inheritance’ while they are still alive, as if the money already belongs to them. And children often make financial plans on the assumption that they will inherit their parents’ wealth.
But while in many cases the children do inherit their parents’ estate, this is not always the case. It is not uncommon for children to be cut out of a will by their parents or for other close family members to be left facing disappointment when a will is read.
The element of surprise
It can come as a complete shock to be cut out of a will. There is no obligation on anyone making a will to tell their nearest and dearest what is in the will. While we would generally recommend that families discuss their testamentary arrangements and plan for the future, in reality people often keep such things to themselves.
The element of surprise can be even greater when someone has been specifically told that they are a beneficiary under a will. The disappointment can be overwhelming when they discover that, after all, they have been cut out of the will.
The most up to date will must be followed
There is no limit to the number of wills that a person can make in their lifetime. Each time a fresh will is made it should include a clause that revokes the previous will. When that person passes away their estate will be distributed to the beneficiaries named in the last, most up to date will, regardless of what previous wills may have said.
People are often informed that they have been named as a beneficiary in a will and are sometimes even given a copy of the will in which they are named. But if that will is revoked and replaced by a new will in which they no longer feature as a beneficiary then it is the final will that the executors must follow. Furthermore, there is no requirement for the person making the will to tell the beneficiary that a new will has been executed.
This can create difficulty for beneficiaries who have counted on receiving a legacy and who have made financial plans accordingly.When they learn that they have been cut out of a will because the testator has made a new one without their knowledge their plans can be left in ruins. For some the financial implications of this disappointment can be far reaching.
Challenging a will
So what can be done if you have been cut out of a will? Are there any exceptions to the principle of testamentary freedom?
While testamentary freedom is enshrined in English law, there are circumstances in which it can be challenged. So, while in theory we may be able to leave our property to whoever we wish, in reality there are limitations. The first of these in the Inheritance Act.
The Inheritance (Provision For Family and Dependants) Act 1975
This is the most controversial of the exceptions to the principle of testamentary freedom. The Inheritance Act gives the courts in England and Wales the power to interfere with a person’s wishes as specified in their will and to substitute the court’s own judgment on who should benefit.
While there are people who believe there should be no circumstances in which someone’s last wishes should be varied by a court, the Inheritance Act was brought in to remedy some very unfair and distressing situations. The Act allows various classes of claimant to challenge a will. This includes the right of spouses (or the long term partners of both sexes) to make a claim if the will of their departed spouse or partner fails to make reasonable financial provision for them. A similar provision exists for anyone who was being maintained by the deceased. Children also have the right to make an inheritance claim. But while few would object to young children seeking provision from the estate of a parent who had died without providing for them, the claims of adult children stir up a much greater degree of controversy.
Challenging the validity of a will
If an inheritance claim succeeds it does not invalidate the will. The will itself still stands, save for the provisions made by the court. There are however separate challenges that can be made to have a will ruled invalid. Various grounds exist such as the deceased lacking the requisite mental capacity to make a will or being unduly influenced.
If someone who has been left out of a will successfully challenges that will and has it declared invalid then the estate will be distributed in accordance with the deceased's last valid will. If there is no earlier valid will then the intestacy rules will apply. It is therefore important for anyone challenging the validity of a will to consider what will happen if their challenge succeeds,
Someone who is cut out of a will can also rely on a legal doctrine known as ‘proprietary estoppel’.
This will apply where someone has been promised that they will be included in a will and has counted on that promise being honoured by acting in a particular way that they wouldn’t otherwise have done.
There are three elements to proprietary estoppel and all three need to be satisfied for a claim to be made:
- a promise made by the deceased
- the promise was relied on to the detriment of the beneficiary
- it would be unconscionable for the promise not to be honoured
A common scenario in which proprietary estoppel is raised is in relation to a family business or farm. It usually involves a son or daughter working for the business or on the farm for little return on the basis that the farm or business will pass to them when their parents die. People in this position can be left in a very bad position if they are cut out of a will. They might have worked for decades, assuming the farm or business would one day be theirs, only to find that the promise has not been honoured and someone else will inherit the fruits of all their hard work.
This is where the doctrine of proprietary estoppel can step in to help the person who has been cut out of a will and award property or a sum of money to them, irrespective of what the will states.
How we can help if you have been cut out of a will
If you have been cut out of a will and would like to know where you stand then you can call our free legal helpline on 0808 139 1599. Alternatively you can send brief details of your case to us at email@example.com