Failing to make provision for someone in a Will

6th March 2015 by

Ben Parr-Ferris, Senior Litigator, Contentious Probate team of Healys, continues his series of articles explaining the different ways in which Wills and Probates are contested. 

It is not uncommon that the first time friends and family know what is in a Will is after the testator has passed away.  It can come as a very considerable shock to discover that the testator has left nothing to some close family member, or has only left a small bequest.

In general people in England and Wales are free to leave their property in their Wills as they wish.  The courts can examine the circumstances of the making of the Will to make sure that it is valid, and that the testator knew what he was doing at the time when the Will was made, but if all those requirements are satisfied, there may be nothing that can be done to overturn the Will itself.

There are however some things that can be done when someone close to the testator has been cut out of the Will.  The Inheritance (Provision for Family and Dependents) Act 1975 can mean that payments to close family are made out of the estate regardless of what the Will says.  There is also a rule of law that means that promises that were made by the testator may be enforceable, and in rare cases where the reason why the person has been cut out of the Will is untrue statements made by another beneficiary, the court can set aside the Will.

Inheritance (Provision for Family and Dependents) Act 1975

The Act (which is often called just the Inheritance Act) says that close family and dependents who do not have reasonable financial provision made for them in a Will, can apply to the court for an order that provision should be made from the estate.

If the person making the claim is a husband or wife of the testator, the court will order that provision should be made that is reasonable for the husband or wife to have, whether or not the claimant needs the funds.  If the claimant is another family member or someone who was dependent on the testator before he died, the court will order that reasonable provision should be made for the claimant’s maintenance.

This means that a spouse who is cut out of a will can expect to get a considerable payment.  A child might get a lesser payment but sufficient to ensure that the child’s everyday needs are paid for.  It is possible to have claims brought by several different people against the same estate.

The court takes into account a lot of factors in deciding whether to make an order and if so, what amount should be ordered to be paid.

An order of this type does not invalidate the Will.  After the payment has been made from the estate to satisfy the court’s order, the Will continues to apply to the rest of the estate subject to any other order the court may make.

Proprietary estoppel

This arises in circumstances where the testator made a promise to someone that certain property would be left to that person in the Will, but then the will did not make that bequest.  If the person the promise was made to acted on the promise and in doing so made his own position worse, he can enforce the promise so that he gets the property despite what the Will says.

A example of this is where a farmer has three children.  The first two grow up and move away, but the third child is told that the farm will be his.  As a result he works on the farm without pay for many years, expecting that he will one day own the farm himself.  When the farmer dies, his will leaves the farm to all three children.  Because the third child has relied on the promise by working for free, he can apply to the court to have he farm transferred to him instead of passing under the Will.

Again, the Will remains valid, but the property that was promised is no longer part of the estate.

Fraudulent calumny

Occasionally the reason why someone has been cut out of the Will is because of untrue statements made by someone else.  This can lead to the Will being invalid.

Case Study Example

In a case on which Healys acted, our client had lived abroad for many years, but his family remained in the UK.  His mother became ill and asked our client’s sister to ask our client to return to the UK to see her.  After the mother had recovered, she asked the sister why our client had not visited; the sister said that our client had said that he did not care and would not travel back to the UK.  In fact the sister had simply not told our client that his mother was ill.  Shortly afterwards, his mother made a new Will completely disinheriting our client.  When evidence of what had been said to his mother was obtained from her friends, a claim was prepared for the Will to be overturned and an earlier Will to apply instead.  The claim settled before the proceedings were issued.

If you require any further information on this topic or the services we offer please contact Ben Parr-Ferris on 020 7822 4104 or email ben.parr-ferris@healys.com.