Can a Child Contest a Will if Excluded? (UK)

It can be emotionally devastating to find yourself left out of a will. But can a child contest a will if excluded? UK laws vary between the nations, with rules in England or Wales differing from those in Scotland or Northern Ireland. JMW can only assist with Will dispute cases within England and Wales - the following guide will apply to these regions only.

Sometimes, you may be eligible to take legal action to get some provision from an estate or challenge your exclusion. However, the process can require court proceedings and may be complicated depending on your relationship with the testator and the reasons for your exclusion. We recommend seeking legal advice when contesting your parents’ will, as mistakes could lead to time-consuming and expensive repercussions. 

In the following guide, we explore how this applies in England and Wales, and explain what children of a deceased person will need to do to challenge a will successfully and receive a distribution from the estate. It is important to note that these laws may not apply in the same way in Scotland.

Can I Contest My Parents’ Will?

The most prevalent reason to take action against exclusion from a will is to claim finances you may have been relying on to live, especially if you were financially dependent on the deceased person.

Given the complexity of this area of law, you will want to carefully consider the potential impact on your grieving family members before pursuing legal action. Sometimes, simply discussing your issue can avoid costly litigation entirely. If the testator unintentionally left you out of the will, you could discuss your concern with family members as they may pursue a claim to amend the will through a variation, or to address any mistakes through rectification. See our Will Rectification page for more information.

Alternatively, they might give you a gift from their inheritance to account for this oversight.

However, if you were deliberately excluded, then there may be additional and more complicated legal issues to consider.

Is it Costly to Contest a Will?

The expenses of conducting litigation can also be costly. You should weigh up the value of being included in a will and the financial benefit you may receive against the cost of hiring a professional solicitor and challenging your exclusion.

Professional will disputes solicitors - like those at JMW - can assess your situation to discuss your chances of success and the money you can expect to receive, should you be successful. Sometimes, we may be able to assist with a no-win, no-fee agreement, depending on your circumstances.

Am I Eligible to Claim?

Before you can begin to plan a claim, you should first find out if you are eligible. There may be some exceptional circumstances, but generally, you may be eligible to contest a will if you are a beneficiary under an earlier will or you may be able to make a claim for provision from the estate if your relationship to the testator is as follows:

• Spouse
• Former or unmarried spouse (common-law spouse)
• Cohabitee
• Child
• Biological and non-biological children who were legal dependents

Other dependents may be eligible, but should consult a solicitor for an assessment.

Laws Regarding Inheritance

When considering whether to make a claim, it is important to note that no law in England & Wales states a parent or family member must leave anything in their will to specific persons. For example, a parent is not legally obligated to name their children as beneficiaries in their will.

If you do bring a claim for reasonable provision from the estate, the amount you receive will be decided by the court depending on your current financial position, current needs, and any foreseeable future needs. The Court has complete discretion over if, and how much, you may receive.

If you and the deceased were going through a divorce, you could be eligible to claim for the finances you have spent on divorce proceedings or anything else they owed you.

Can a Grandchild Contest a Will?

In England and Wales, grandchildren do not have an automatic right to inherit from their grandparents' estates. However, they can contest a will if they inherited under a previous will and there are reasons why the last will was invalid. In these cases, they can claim for reasonable provision from an estate if they were financially dependent on their grandparent, or if they were promised inheritance of a specific asset and they relied on that promise to their detriment. Grandchildren contesting a will should seek expert legal advice, as the process is complex and requires substantial proof to support the claim.

Can a Step-Child Contest a Will?

Step-children in England & Wales are eligible to seek reasonable provision from an estate if they believe they have not been adequately provided for from the deceased's estate but only if they have been treated as a ‘child of the family’ by the deceased. This ordinarily implies the step-child lived in the same household and was brought up by the deceased acting as a step-parent. Each case is unique, and step-children are encouraged to consult with a solicitor to understand the merits of their claim.

Can an Adopted Child Contest a Will?

An adopted child can only contest the wills of their adoptive family. Once a child is legally adopted, they lose the right to inherit from their biological parents' estates under the law of England & Wales. Their right to inherit will be from their adoptive parents instead. However, there might be exceptional circumstances where the biological parent explicitly included the child in their will or made promises of provision. In such rare cases, it might be possible for an adopted child to contest their biological parent's will to receive this financial provision, but they would need to seek professional legal advice for a thorough assessment.

How Can a Child Contest a Will if Excluded or Seek Reasonable Financial Provision?

When contesting a will or making a claim for financial provision, you should first know what you want from the estate, whether this is money, property or another asset. This will help you and your solicitors understand how realistic your chance of success is in making a claim.

One important factor to consider is the mental capacity of the testator at the time the will was made, as they must have had a sound mind to make a valid will. Secondly, you must consider any time limits, which for many claims (those for reasonable provision) can be within six months of the grant of probate.

Additionally, you should be aware of the potential for undue influence, where the testator may have been coerced into altering their will through pressure or manipulation. This may render a will invalid.

You will have a maximum of six months from the Grant of Probate to prepare and enact a claim for reasonable provision from the estate. The financial circumstances of other beneficiaries can also influence the court's decision regarding your claim on the deceased's estate. A successful claim will require strong evidence of your relationship to the deceased, including the nature of your financial dependency, and details of your finances, and the Court will need to consider the needs of other beneficiaries as well.

If the court rules in your favour, you will be awarded assets from the estate and will receive funds, property or other assets when they are distributed.

If the court determines that you should receive reduced or no provision, and you are dissatisfied with the outcome, you may have the option to appeal the decision after careful consultation with your solicitors, but this is not guaranteed and specific advice from a professional solicitor should be considered.

Visit our Contesting Wills page to learn more about how JMW can help you.

How Can JMW Help?

The professional wills, trusts and estate disputes solicitors at JMW are experienced with cases involving challenges to wills, and can support you in your attempt to claim the finances you need and deserve. We can offer expert advice in a format that is easy to understand for those unfamiliar with the complexities of probate disputes law and remain transparent throughout the entire process. Our solicitors are experienced in handling claims from adult children, who may face challenges in proving financial dependency on the deceased.