Can you get your inheritance back after being cut out of a will?

If you feel you've been unfairly cut out of a will, you might have a chance of making a claim and inheriting anyway. Emma Lunn reports.

Last month saw three animal charities win a case at the Supreme Court against a woman cut out of her mother's £486,000 will. The protracted dispute over Melita Jackson's will had been going on since her death in 2004. Heather Ilott, now a mother of five in her 50s, was Jackson's only child but had been estranged from her mother since she was 17. When Jackson died aged 70, she left her £486,000 estate to charity, but nothing to her daughter. Ilott challenged the will under the Inheritance (Provision for Family and Dependants) Act 1975 and was awarded £50,000 by a district court on the basis she had been "unreasonably" excluded by her mother. A further challenge from Ilott resulted in the Court of Appeal subsequently upping the award to £163,000. But with the increase, the charities took the case to the Supreme Court, which reverted the award back to the original £50,000.

The lengthy case was unusual in that it reached the Supreme Court it was the first case bought under the Inheritance Act to reach that level. However, the number of people disputing wills is increasing each year. Jessica Neyt, partner at Knights Professional Services, says this is due to a number of factors. "People are living longer and revising what they had originally outlined in their will. And mortgage-free properties are often involved in disputes, which have a much higher value than they did years ago," she explains. "Also, people are more proactive than they used to be and are more aware of their rights."

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First steps if you think you have a case

It might sound obvious, but a will can only ever be contested after the testator (the person who made the will) has died. There are two types of dispute: contesting the validity of a will, and claims for financial provision under the Inheritance Act 1975 (as per the Ilott case). Time is of the essence if you want to contest a will. But it's a complex area of law and expert advice is crucial.

When someone dies, the executors of their will apply for a "grant of representation" or "probate". This gives them the legal right to sort out the deceased's estate. If you want to contest a will you need to stop probate being issued and you can do this using a "caveat". A caveat can be issued by a solicitor, costs £20 and lasts six months.

The next step is usually to obtain a copy of the will. This can be tricky if relations with the executors are not amicable, but you can obtain the necessary details by making an application for a "Larke v Nugus" statement (so named after a test case in 1979). Caroline Hewitt, solicitor at law firm SAS Daniels, says: "Solicitors are under an obligation to provide information about wills they have prepared. It is in the interests of all parties to comply with this step before court proceedings are issued as it can often flush out issues before costs are incurred". Once probate has been stopped and the will's contents divulged, your solicitor can establish if you have a case to challenge the validity of the will.

There are a number of occasions when a will might not be valid. These include if the testator did not have "testamentary capacity" when they made the will, or if they were "unduly influenced" by someone else when setting out their wishes. A will can also be declared invalid if the formal requirements necessary for a will were not met, such as the document not being properly signed or witnessed. "There are currently two tests for assessing whether a testator has testamentary capacity: a common law test, as set down in the case of Banks v Goodfellow; and a statutory test, introduced by the Mental Capacity Act 2005," says Joseph Henry, associate at legal firm Hodge Jones & Allen.

Henry says it's relatively rare for wills to be found to be invalid because of undue influence. In order for a case to succeed it must be proved, rather than presumed, that the testator was unduly influenced. "The fact that a situation may support a case of undue influence is not enough. The fact that someone may have persuaded or appealed to the testator to make a particular decision is legitimate and does not amount to undue influence, there must have been coercion," he explains. If a will is found to be invalid, the deceased's estate will be distributed in line with any earlier will. In the absence of an earlier will, the rules of intestacy apply.

Settling out of court

Despite the Ilott case making it all the way to the Supreme Court, most contested wills don't make it to court at all. It's in the interests of all concerned, and cheaper, to resolve issues via mediation between solicitors for both sides. "A solicitor engaged at an early stage can put together a persuasive letter of claim', which should help persuade the opponent, either a beneficiary under the will or more usually the executors, to negotiate a settlement or engage a professional mediator to broker a deal," says Helen Brown, head of dispute resolution at Slater Heelis LLP. "If no deal can be done, and the amount of money in dispute is a reasonable sum, High Court proceedings may be necessary."

To progress to legal proceedings, a claim form needs to be issued in court supported by a properly pleaded case and the opponent serving a defence. It's not a quick process it usually takes about two years from the court proceedings being issued for a trial to start.

Claiming even if the will is valid

Even if a will is valid, it's still possible for certain people to bring a claim using the Inheritance (Provision for Family and Dependants) Act 1975 on the basis that the will failed to make adequate provision for them. The Inheritance Act can also be used if there is no will in place and the claimant wouldn't inherit under intestacy rules. The 1975 act allows disappointed parties to challenge a will in two scenarios. The first is if they were given assurances by the testator during their lifetime about inheriting land or property only for the will not to honour the promises. In this situation, a legal challenge called "Proprietary estoppel" can be used.

The other option is to contest a will on the basis of your financial dependency on the deceased. To do this, a claimant will need to fit into one of several specified categories: the spouse or civil partner of the deceased, the former spouse of the deceased who has not remarried, a child or treated as a child of the deceased, or anyone who was maintained by the deceased (such as a cohabiting partner).

Daniel Curran, founder of probate firm Finders International, says proving dependency is key to winning a case and this mostly works for underage or disabled claimants. "Unlike many European countries where children have an automatic right to 50% of their parent's estates, a claim against a UK will which excludes provision for children may be doomed to fail, whereas claims based on dependency have a better chance of succeeding," he says.

Contesting a will under the Inheritance Act can take time as evidence will need to be obtained in order to present a claim. Once a letter of claim has been sent, there are protocols providing timescales for both parties to reply and set out their case. As with cases challenging the validity of a will, solicitors suggest claimants using the Inheritance Act attempt mediation before starting civil court proceedings.

Challenging provision under intestacy

The Inheritance Act can also be used to challenge provision under the rules of intestacy. These rules come into play if someone dies "intestate" (without making a will). In the UK, spouses or civil partners automatically inherit, but cohabiting partners are ignored in favour of family members. If someone remarries, their new spouse will inherit before any children. "Under the 1975 act, each case is dependent on personal circumstances. A long-term cohabitee who has been left nothing under the intestacy rules will have better prospects of success than an adult child who has been excluded from a will," says Nicola White, an associate solicitor at Blacks Solicitors.

For spouses making an inheritance claim, the court will use similar considerations to those it would use in a divorce: is what the person has been left fair and adequate? When adult children challenge a will, they will need to establish a reasonable and ongoing need for maintenance. Someone with a good career and financial standing will find it much harder to win a case than a disabled or impoverished claimant.