My late mother cut me out of her will – can I still claim my share?

My mother passed away last autumn and probate was granted two months later.

There are two beneficiaries, my sister and her daughter who is also the executor. The estate is valued at around £220,000.

My mother and I have never been close but we did keep in touch. About a year before she passed she told me that she had never thought of me as her son.

This was devastating but did answer some questions for me. She had never told me she loved me, never given me a hug or shown me any affection.

I think the reason she hadn’t bonded with me was because when I was a baby my father abandoned us and emigrated, and I am sure that I have always reminded her of him and what he did. I don’t think she ever thought that I was abandoned too.

Do you think it is possible for me to make a claim for a share of the will? If so what do I do?

Briefly, my circumstances are I am married, I am 62 and my wife is 66. We have a special guardianship order on two sisters from when we were foster carers.

The oldest is 13, the youngest is 10 and has autism spectrum disorder and attention deficit hyperactivity disorder.

I work one day a week and earn £4,000 a year. My wife is on state pension. We get working tax credit and child tax credit and one of the children gets disability living allowance, so we don’t have a lot of money. I would be interested in any advice you can give me.

Tanya Jefferies, of This is Money, replies: My heart goes out to you and I am sure anyone reading the above will be greatly saddened to hear of your experiences.

Your story is deeply personal but your question is a legal one, so we found a highly experienced – as well as sympathetic – lawyer to respond to you.

The steps you might take now are laid out below, but I must forewarn you that they could lead to further painful discoveries and interactions with your wider family.

One would probably involve learning if your mother left any additional written details or instructions with her solicitor about why you were not included in her will.

Another would be to ask your sister and niece if they are willing to legally change your mother’s will, using a ‘deed of variation’, to include you as a beneficiary after all.

If you want to find your own solicitor to help you with all this, the Law Society has a search tool here, although you might prefer to ask people you know for a personal recommendation. 

Michael Prendergast, partner at Dickinson Parker Hill Solicitors, replies: Firstly, I am very sorry to hear that your mother has passed away and about the difficult circumstances you now find yourself in.

Dealing with the death of a parent is never easy.

There are a number of legal issues that arise from your question and I have tried to focus on what I think are the most important for your circumstances. 

Can you make a claim on your mother’s estate?

Michael Prendergast:  Any child not included in the will and estate of their parent can theoretically make a claim

In short, yes, but whether any challenge would be successful is a completely different question.

Any child not included in the will and estate of their parent can theoretically make a claim under the Inheritance (Provision for Family and Dependants) Act 1975.

Children who feel they should be included in a will, but are not, are specifically listed as among the class of people who can bring a claim under this piece of legislation.

If you are to bring a claim under this heading, then I would suggest you act fast as, unless the court allows it, you only have six months from the date probate was granted to bring such a claim.

You have mentioned that your mother passed away in the autumn and we may now be approaching, or may have already passed, this six-month deadline.

Simply because you can bring a claim though is no guarantee it will be successful and whilst the courts have very wide powers under this legislation that does not mean they will always use them.

You have not mentioned in your letter any concerns regarding the validity of your mother’s will.

I assume this means that you accept it as a valid will, and that you believe your mother knew what she was doing at the time she made it.

I say this because one of the other routes to making a claim on an estate could be to challenge the validity of the will, but in your case this does not seem applicable.

If your mother’s will was professionally prepared, meaning by someone legally qualified, it might be an idea for you (or your solicitors) to approach the firm who did this work.

You can ask for their file to ensure that your mother had set out her reasons clearly for not including you as a beneficiary.

Any solicitor with a client who wanted to cut out a child as a beneficiary would be extra cautious and you would expect to see detailed notes and information. 

Should you bring a claim on your mother’s estate?

If we assume that you can bring a claim, the next question is should you bring a claim?

Under English law, every individual has the right to leave their estate to whoever they choose. This is known as ‘testamentary freedom’.

In recent years this has been curtailed to a degree by decisions of the courts, especially claims brought under the legislation mentioned earlier.

However, fundamentally, it is still the case that in a will you can leave your estate to whoever you like and, at the same time, exclude whoever you like as well.

It seems to me that you had a difficult relationship with your mother. However unfair it may seem, there was no obligation on her to include you as a beneficiary of her will.

Given what you have told us about your family history, and what your mother said to you in the year before she died, her will appears to say what you might expect someone with her views and opinions to say.

I can see you have mentioned your current family and financial circumstances, and if you were to bring a claim, a court would certainly take these points into consideration.

However, your financial circumstances alone would not be a guarantee of any claim to the estate being successful. 

Do you have another option?

An easier method of trying to remedy the situation might to be to approach your sister and niece to see if they are willing to enter into a ‘deed of variation’.

This, in essence, could rewrite parts of your mother’s will and include you as a beneficiary.

This would of course require their consent, but if they are agreeable it would be far easier, quicker and less confrontational than making a claim on the estate via the courts. 

What action can you take now?

If you decide you want to make a claim then you should act quickly and instruct your own solicitor, because of the deadlines mentioned above.

You may also want to approach your sister and niece about a deed of variation.