Am I Entitled To Anything If An Estranged Parent Dies?

The answer to this question depends on whether your estranged parent left a Will, and if so, what the terms of the Will are.

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By Nicola Briggs - 23rd August 2021

If your estranged parent has died, you might be wondering whether you could stand to receive an inheritance, despite the fact you weren’t on speaking terms. The answer to this question depends on whether your estranged parent left a Will, and if so, what the terms of the Will are.

If there’s no Will

Where there is no Will, then the intestacy laws will apply and the spouse or civil partner will receive the other half of co-owned assets, a statutory legacy of £270,000 and one half of everything else. The other half of the residue will be divided between the children, whether or not they are estranged, in equal shares. The law does not take into account the status of family relationships at the time of a death, so no distinction is made between a child who is estranged from the deceased and one who is not.

So, if your estranged parent didn’t leave a valid Will, then you could inherit a share of their estate under the intestacy laws.

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If there’s a Will

Where there is a Will, then the intestacy provisions are overridden and the terms of the Will apply, even if they exclude an estranged child. If there is an estrangement it is up to the person who is writing the Will to leave written reasons as to why they are excluding that child, if the reasons are not clear before death. This differs to some other countries, where it is not possible to cut a child out of a Will entirely. In England and Wales, however, the person who is writing the Will can include or exclude their children as they wish.

So, if your estranged parent did leave a Will, then it depends on the wishes set out in the document. You may or may not have been named as a beneficiary. If not, you won’t get anything, unless you are able to mount a successful challenge.

Contesting a Will

Where a child has been excluded from a Will, or has not received proper financial provision, he/she may wish to contest the Will.

A challenge can be raised on the basis that the parent did not have the necessary mental capacity to make the Will because they were suffering from a delusion of the mind. This could manifest as a paranoia that their child is out to kill them, or is stealing their money or is exceptionally well off compared to their brothers and sisters. Certain legal tests will have to be met to satisfy a court that the delusion was sufficient to have the Will overturned.

Failing that, the estranged child may wish to bring a claim under the Inheritance (Provision for Family and Dependents) Act 1975. This allows people who believe they have been unfairly treated to claim something from an estate or to claim more than their original inheritance. It will be necessary to instigate legal proceedings. This comes with some risk as to legal costs, not only your own, but if you fail in your claim, of the other side.

Any claim by a child cannot be for capital but only for maintenance. They would have to prove that promises had been made to them in their lifetime, such that they had changed their position to their detriment. Or, in the case of a child under the age of 18, that the child maintenance and support had come to an end abruptly. Or, that there is some other just and equitable reason why the claim should succeed.

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Prospects of success

If you are an adult of working age and you have had very little to do with the estranged parent over the last 20 years, then it is unlikely that a claim will succeed. Current judgments coming down from the courts are showing that it is an uphill struggle to succeed in this type of claim.

It is also worth noting that you cannot contest the provisions of a Will before that person has died. We do get such enquiries, but unfortunately, we have to advise that no action can be taken until death. The exception is where the capacity of the parent is in such doubt that an application has to be made to the Court of Protection for a statutory Will. This will cost many thousands of pounds and there is no guarantee that the Court will agree with the new proposals.

Get legal advice

The best advice we can give is to try to end the estrangement in the lifetime of a parent and whilst they have the capacity to make informed decisions. We understand that this may be difficult where there is a great geographical distance, with other family members pulling strings, and where a parent is beginning to lack clarity of thought. Every case and every family is different. There is no disadvantage in seeking preliminary legal advice as to the best way forward.

If you want to talk to a legal expert about writing or contesting a Will, contact us at Aticus Law for a free initial enquiry.

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