Disinherited child contesting a will

Hello! I am Gemma, a legal assistant at Lawyer Destroyer. I would be very happy to help explain this for you.

The short answer is yes, a child can contest a will if they have been left out, though there are specific rules about how and when they can do this in England and Wales.

The legal position regarding financial provision:

In England and Wales, people generally have what is known as testamentary freedom. This means they can legally leave their money and property to whoever they choose.

However, the law also recognises that cutting certain people out of a will can cause severe hardship. Under the Inheritance (Provision for Family and Dependants) Act 1975, a child of the deceased can make a claim against the estate if they feel the will does not make reasonable financial provision for them. This applies to biological children, adopted children, and people who were treated as a child of the family by the deceased.

For a child, reasonable financial provision means what is reasonably required for their day-to-day maintenance and living costs. It is not about simply getting a fair share or receiving an inheritance out of principle.

Minor children usually have a straightforward case because they are naturally dependent on their parents. Adult children can absolutely still claim, but it can be harder. The court will look at several factors, including the adult child's current financial situation, their earning capacity, any health issues they have, the size of the estate, the needs of the people actually named in the will, and whether the deceased was supporting the child before they died.

The legal position regarding the validity of the will:

Separately from claiming financial support, a child might also challenge the will if they believe it is legally invalid. This is a very different type of claim. A will might be invalid if the person making it did not have the mental capacity to understand what they were doing, if they were pressured, coerced, or tricked into completely cutting the child out, or if the document was simply not signed and witnessed correctly.

Important time limits:

If a child wants to make a claim for reasonable financial provision, they only have six months from the date the Grant of Probate is issued. This is a very strict deadline, so it is important to act promptly. Claims about the will being invalid do not have the same strict six-month deadline, but any delay can still make the case much harder to win.

Practical next steps:

1. Look at the documents
The first step is to read the will and understand exactly what it says. If probate has already been granted, the will becomes a public document. If probate has not yet been granted, the child can ask the executors for a copy.

2. Assess the financial need
If the claim is for financial provision, the child should start gathering evidence of their financial situation. This means looking at their income, typical outgoing expenses, debts, and any pressing future needs.

3. Talk to the executors and beneficiaries
Sometimes, a sensible and calm conversation can lead to a compromise. The beneficiaries might agree to alter the distribution of the estate voluntarily using a document called a Deed of Variation.

4. Explore mediation
If an informal agreement is not possible, mediation is a brilliant next step. An independent mediator helps the family reach a compromise. It is usually much cheaper, faster, and less stressful than formal litigation.

5. Think carefully about going to court
Taking a will dispute to court is a last resort. It can take a long time, it is highly stressful, and it is very expensive. There is always a risk that the legal costs completely swallow up the money in the estate, leaving nothing for anyone to inherit.

I hope this helps make a very stressful topic a little clearer. Please do let me know if you would like me to explain any of these steps in more detail.