I have been left out of a will, and it`s not fair. What can I do?

Options after being left out of a will

In these current dark days of the unknown when the cupboard is bare, and money is non-existent, people look to their friends and family for help financially.

‘I loved my father very much. He left me nothing in his will. He wouldn’t have done that to his own flesh and blood’.

No one gives you the will when you ask, out of embarrassment. Or was it really the case that you were left something, but they are withholding it from you?

The unknown creates all sorts of paranoia in all of us.

Once someone dies, their will becomes a public document and you can obtain a copy from the Probate Registry.

Is the will valid?
The first thing a lawyer should do is to check whether the will is valid.

Is it set out correctly?

Is it signed by the person who made it?

Is it witnessed by two witnesses? Are they real? Did they really sign and witness the signature of the person who made the will (testator if a man, testatrix, if a woman)? Following a case of Larke v Nugus [1979] CA p339, and later reported in (2000) WTLR 1033, questions can be asked of the witnesses to a will. There is a practice note for lawyers to follow, published on 6th October 2011, as to what is good practice when probing potential witnesses.

Was the testator a well person? Did they have the mental capacity to make such a will? Was there medical evidence showing any problems or concerns? Did the drafter of the will make a note of the mental capacity of the testator? The test was decided in the 18000s in a case called Banks v Goodfellow [1879]

A person making a will must be of “sound mind, memory and understanding” when making a will. The testator must:

• understand the nature of the act and its effects
• understand the extent of the property of which he/she is disposing
• be able to comprehend and appreciate the claims to which he/she ought to give effect
• and must not be affected by any “disorder of the mind” that shall “poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties and that no insane delusion shall influence his will in disposing of this property and bring about a disposal of it which, if the mind had been sound, would not be made”.

Why were you left out of the will?

So, your name is not in the Will, but there is a letter of wishes setting out why you were not left something. Is that letter genuine?

Who wrote it? When was it written? Did it pre-date or post-date the date of the signing of the will? If so, why?

What if the will is valid, and there is no letter of wishes, and you were left nothing, but during the testator’s lifetime, they cared and looked after you financially?

After someone dies, the estate of that person is considered to define the size, and the extent, and what is in the will is distributed?

Once all is accepted by the Probate Registry, a Grant of Probate is given.

You have six months from the date of grant of probate to make an application to the court under the Inheritance (Provisions for Family and Dependants) Act 1975 to say why you should be given something, even if not provided for in the will.

Promises made to leave a legacy?

What if the will is valid, there is no letter of wishes, but you were promised money or an item?
Matters then become complicated. Promises with evidence of written communications are good. Promises with evidence of that promise being made in front of others could be good. Promises with no evidence to corroborate the promise made to you that you would receive something is potentially still arguable, but let so.

What if the will is invalid?
If you saw the will before “grant of Probate”, you should enter a caveat/notice at the Probate Registry which will last six months, notifying you of anyone seeking a grant of probate, and preventing them from doing so, until your caveat is lifted.
There will then be an argument and the courts will have to determine the true position as to whether or not the will can be relied upon.

What if more than one will exists and one post-dates the other?
Which one are you looking at? The later will usually state in it, that any previous wills no longer stand and can be disregarded. What if the later will does not say this? Again, this will be a matter for the court to decide.

This blog post is for information purposes and should not be relied upon as legal advice because it does not consider or take into account your own personal circumstances. If in doubt, seek legal advice.

Professor David Rosen is a solicitor-advocate, partner and head of litigation at Darlingtons Solicitors LLP. He is a strategic legal advisor for Help4LiPs, a member of the Society of Legal Scholars amongst other memberships, and honorary professor of law at Brunel University where he regularly lectures on practical legal skills and procedure, and advocacy amongst other subjects.