Am I entitled to a part of my relative’s Estate?
Zoe Davis | Trainee Solicitor
Whether you are entitled to receive part of an estate will depend on whether the person who has passed away had a will.
If there is a will:
- The estate will usually be distributed in line with the deceased’s wishes as set out in their will. A person is entitled to leave their estate to anyone they choose and as such, regardless of your relationship to the deceased, if you have not been included in their will, you will not inherit.
If there is no will:
- The estate will be distributed in line with the Intestacy Rules. These rules provide a list of priority by which the relatives of the deceased will inherit. These rules do not consider the dynamics of the family or whether relatives have contact with the deceased. This is why it is so important to make a will, so that your estate goes to who you want it to.
However, just because you do not inherit under either of these scenarios , does not mean that you cannot challenge either the will or the intestacy rules. There are various ways to contest a will or probate.
The first type of contentious probate claim can be made by challenging a will’s validity. This can be done by challenging the way the will has been executed and signed or by challenging a will because of:
- Undue influence – where the testator has been unduly influenced into making her will a certain way; or
- Lack of testamentary capacity – where the testator lacked the relevant mental capacity to make the will.
Although solicitors are trained to put into practice the correct measures to prevent a will being created under these circumstances, sometimes the deceased has made the will themselves or the signs of undue influence or lack of capacity are not obvious.
These are not the only ways to challenge, in effect, the order of inheritance. You can challenge a will or the Intestacy Rules by making a claim under the Inheritance (Provisions for Family and Dependants) Act 1975. These claims can be made by certain relatives or loved ones who were being financially maintained when the deceased died but are not reasonably provide for by the estate.
These claims can go hand in hand with claims for proprietary estoppel. These are claims where the deceased has promised some legacy in her will. The promises made have then been relied upon by the claimant to their detriment. These promises will then not have been included in the will..
Finally, a claim can be made where a common intention trust has been created. These can be created expressly or impliedly by the actions of the deceased and the claimant. They often occur where two parties live in a house and contribute evenly to the upkeep of the property, but the property is only in one person’s name. There is a common intention that the property will be jointly owned and so a trust is created accordingly.
A contested probate claim can be brought against the estate of the deceased and the beneficiaries on all these grounds. If your relative passes away and you are not a beneficiary of the estate, it doesn’t necessarily mean you won’t inherit.
If you require any further advice relating to a contested probate matter, please don’t hesitate to contact Zoe Davis: zdavis@josiahhincks.co.uk, Jack Khurana: jkhurana@josiahhincks.co.uk or Sheila Valand: svaland@josiahhincks.co.uk.
