What can be done for those left out of a Will or on Intestacy

As a general rule, any person is free to leave their estate as they see fit.  However, that does not prevent the provisions of their Will from being challenged after death if someone is left out of a Will.  Even where an estate is intestate (there is no Will), the statutory provision made in default can be challenged. 

In recent times, more people cohabit rather than marry and second marriages or relationships are commonplace. 

Where there are children from a previous relationship, the testator is frequently torn between a desire for their estate ultimately to pass to them rather than outright to their new partner but may wish to provide for that partner during their lifetime.  A life interest is often used to address this problem.  Such an arrangement may not constitute reasonable provision for the surviving spouse or partner and is open to challenge under the Inheritance Provision for Family and Dependants Act 1975. This is just one example of where the adequacy of provision can be called into question. 

The Court in considering these applications has to look at a range of factors: 

  • The financial needs and resources of the Applicant, any other Applicant, and the Beneficiaries 
  • The obligation of the deceased towards the Applicant(s) and Beneficiaries 
  • The size and nature of the net Estate 
  • Any disabilities of the Applicant(s) or Beneficiaries 
  • Any other relevant matter including conduct 

    The test for a cohabitee is set higher than for a surviving spouse

    A surviving spouse must establish if the Will or Intestacy fails to make reasonable provision. A surviving partner (not married but living as husband and wife in the same household for two years prior to death) has to prove that this is not a reasonable provision for their maintenance. The latter is a higher standard. 

    There are other categories of Applicant: children, those treated as a child of the family by the deceased, and dependents being those maintained wholly or partly by the deceased immediately prior to death.  Again these categories also have to prove that the Will or intestacy fails to make reasonable provision for their maintenance.  Claims by these other types of applicants tend to be more difficult to prove but with the necessary evidence can still be pursued. 

    The Court has to balance the interest of all the parties. 

    Testators wishing to exclude a legitimate Applicant should leave a note of their reasons

    A testator desirous of excluding any legitimate Applicant should leave a note of their reasons alongside their Will as this will be useful when considering the merits of any claim. The beneficiaries are usually concerned to see the terms of the Will are implemented and take the view the receipt of a claim undermines what the testator intended. The potential impact of legal costs upon the Estate available for distribution must also be kept in mind. 

    There are very strict time limits for claims of this nature so prompt advice is important.  We act on behalf of Applicants, Beneficiaries, and Personal Representatives although this last category generally adopt a neutral role unless otherwise interested.  Many of these cases are suitable for alternative dispute resolution such as mediation and we can assist with that as well. 

    By Sarah Payne, Litigation Solicitor


    Disclaimer: This guide contains general information only and does not constitute legal advice.  You need to consult a suitably qualified lawyer from the firm on any specific legal issue.