A scenario that we frequently encounter as contentious probate practitioners is where a step-child finds themselves in a situation where their step-parent has changed their Will following the death of their spouse who was the parent of the step-child.
It is often the case that the predeceased spouse, person A, has prepared a Will leaving their assets to their spouse, person B, in the first instance and then their child in the event that their spouse predeceases. At the same time, person B prepares a similar or mirror Will also leaving their assets to person A and then their step-child in the event that person A dies before them. What often then happens is that person A dies first and person B then goes on to change their Will to benefit their own family rather than their step-child.
This scenario more frequently occurs when either: –
1. A long period of time has passed between the death of person A and person B;
2. The relationship between the step-child and person B has become strained or distant following the death of person A;
3. The surviving step-parent is elderly and vulnerable following the death of their spouse; and/or
4. Other individuals become involved in person’s B life and have an effect on their testamentary wishes.
What can the step-child do?
There are several matters for step-children to consider in this scenario. They may potentially have several different claims that can be advanced against the estate.
A claim that person B’s later Will is invalid
It may be possible to challenge the validity of person B’s later Will.
There are 4 grounds upon which a Will can be challenged. These are as follows: –
1. That the Will does not comply with the requisite formalities;
2. A challenge on the basis that the testator lacked capacity;
3. A claim that the testator does not know and approve of the content of the Will; and
4. That the testator was subjected to undue influence or coercion.
The above can either be considered as stand-alone reasons for concerns about the validity of a Will or several may apply. It may be the case, for example, that the testator is an elderly person who suffers from a complex neurological condition such as advanced dementia and they no longer recognise their friends and family members. Whilst this would not automatically mean a testamentary document is invalid, there may be sufficient concern to justify an investigation. It may be the case that the testator was influenced into changing their Will by someone who becomes a beneficiary in the later Will. Again, particularly frail or unwell individuals could be particularly susceptible to influence and coercion.
A mutual Wills claim
We have mentioned above how person A and person B may prepare mirror Wills leaving everything to each other in the first instance and then to the step-child. It is possible that mutual Wills were prepared instead of mirror Wills. A mutual Will is a binding contract between person A and person B whereby they agree that those Wills will not be changed in the future. Mutual Wills are not particularly common but a careful review of the Will itself and corresponding Will file could be a worthwhile exercise.
If the step-child was promised an inheritance either by person A or person B and they relied on that promise to their detriment, it is possible that they may be able to advance a claim in proprietary estoppel.
Claim under the Inheritance (Provision for Family and Dependants) Act 1975
If the step-child was financially maintained by the step-parent throughout their lifetime, and more specifically following the death of the parent, they may have a claim arising under the Inheritance (Provision for Family and Dependants) Act 1975. This piece of legislation enables certain categories of applicant to apply to the Court on the basis that they have not been left anything by the deceased or they have been left an insufficient amount.
If you have any suspicions that any of the above may apply, then it is important that you contact a Contentious Probate specialist straight away. You can search for Contentious Probate Specialists in your area on the Certainty Contentious Probate Hub & Area on The National Will Register website. There are several investigations that need to be undertaken with a degree of urgency in a scenario where it is possible that a testamentary document is invalid. The Executors of the Will in question should be put on notice that there is a possible dispute arising and they should not take steps to distribute any assets from the estate whilst the investigations are outstanding.
There are often many complexities in scenarios such as those outlined above that can be tricky to navigate through following the death of a loved one. By taking advice from an expert at the earliest opportunity, we will be able to analyse any claims you may be able to bring and guide you through what can be an incredibly emotional and stressful time.
The Contentious Trusts and Probate Team at Meridian Private Client LLP are experienced at dealing will all manner of disputes, many of which may not come to light until after someone passes away. Should you require further advice or are concerned about any potential future disputes, please contact Meridian Private Client on 01675 442 430 and ask to speak to a member of our team.
This article was created by Emma-Louise Green, Associate at Meridian Private Client LLP and listed specialist in the Certainty Contentious Probate Hub & Area.