How To Make a Legal Claim On An Estate

Sarah RyanAccount Manager @ Lawhive & Non-Practising Solicitor

Updated on 27th February 2024

When someone dies without leaving a will or doesn't include certain loved ones in their will, it can lead to confusion and strong emotions.

If this has happened to you, you might be left feeling as though you are entitled to something, especially if you were promised it by the deceased, or if you believe the will is invalid.

In these situations, you might consider making a legal claim against the estate for what you believe you're owed.

In wills, trusts, and probate law, you may be able to make a legal claim on an estate regardless of whether the deceased had a will or died intestate.

This article will guide you through how to make a legal claim on an estate.

What is a legal claim against an estate?

In England and Wales, the Inheritance (Provision for Family and Dependents) Act 1975 gives individuals the freedom to include anyone they choose in their will.

There is no legal obligation for anyone to include specific loved ones, family members, or dependents in a will. This is called 'testamentary freedom.'

Unlike other countries where there are stricter rules to ensure provision for family members and dependents in wills, in England and Wales, individuals have more freedom.

However, to balance this freedom with the needs of dependents, some individuals are entitled to make a legal claim on an estate during probate, the legal process of assessing a person's assets and managing their estate.

Why would you make a legal claim against an estate?

Certain circumstances allow someone related to the deceased or one of the dependents to make a legal claim on an estate.

If you disagree with a will, you can challenge its validity or, if the will didn't provide for you reasonably, you can make an Inheritance Act Claim.

There are various reasons why you might consider claiming against an estate. Some common reasons include:

• Lack of mental capacity (the person who made the will wasn't aware of what they were doing when they made the will)

• The legal requirements for making a will valid weren't followed when it was made, making the will invalid.

• The person who made the will was unduly influenced or misled into making it;

• You believe the deceased should have provided for you;

• The person who died made a promise to you, which they didn't honour in their will. you relied on this promise, and as a result, suffered a disadvantage.

Who can make a claim against an estate?

The Inheritance (Provision for Family and Dependents) Act 1975 allows the following relatives of the deceased to make a claim on their estate:

• Spouse or civil partner

• Former spouse or civil partner (providing they haven't remarried)

• Children (regardless of their age), grandchildren, or great-grandchildren

• Mother or father

• Grandparents

• Brother and sister with the same parents and their children, half brothers, sisters and their children

• Uncles and aunts of their children (first cousins and their children)

• Half uncles and aunts who share one grandparent with the deceased

• Stepchild, former stepchild

• Anyone living with the deceased for the two years leading up to death

• Anyone financially dependent on the deceased immediately leading up to death.

How to make a claim on an estate: step by step

To claim in the most efficient manner you should follow these steps:

Decide on what grounds your claim will be based

To make your case, you need to first determine the grounds for your claim and gather supporting evidence. As we've noted, there are various reasons why someone might make a legal claim on an estate, such as proprietary estoppel or questioning the will's validity.

To establish these grounds, you may need to get a copy of the will from the executor. If they refuse, you can explain that withholding the will could drag out the dispute unnecessarily and increase costs. Additionally, if the judge rules in your favour, they may be responsible for your legal fees. Therefore, it's beneficial for all parties if the executor provides a copy of the will for a prompt resolution.

Or you can have your solicitor communicate this to the executors on your behalf.

Which brings us nicely to the next step...

Seek legal advice

If you're considering making a legal claim on an estate, it's wise to speak to wills and probate solicitor first. They can determine if your claim is valid and assess its strength.

If your case is strong and you choose to move forward with the claim, they can help you navigate the process and everything involved.

Enter a caveat

If a will is going through probate, your solicitor might suggest entering a caveat to pause the issuance of probate (for a will) or letters of administration (if there's no will) by the Probate Registry.

These documents allow the executors or representatives of the deceased's estate to distribute them to beneficiaries.

While you can still make a claim after probate or letters of administration are granted, it's usually more complicated. Entering a caveat gives you time to handle your claim before assets are distributed, making the process easier.

Explore negotiation or mediation

Alternative Dispute Resolution (ADR) services are there to help you negotiate with executors and beneficiaries to resolve your claim faster. ADR options include:

1. Mediation

2. Discussion

3. Negotiation

4. Evaluation by a neutral third party.

There isn't a certain point during proceedings where ADR is an explicit consideration. Rather, parties may try one or more alternative avenues during the process.

That being said, if one party refuses to consider ADR if it's brought up, the court may consider this when they decide who pays legal costs after a claim goes to court and the decision on a legal claim on an estate is given to a judge.

Follow the wills and probate pre-action protocol

Before starting court proceedings in England and Wales, claimants must follow a pre-action protocol for wills and probate matters.

The purpose of the pre-action protocol is to encourage parties to resolve a dispute without going to court by encouraging the exchange of specific information upfront.

For legal claims on an estate and probate disputes, the key steps of the pre-action protocol are:

1. The claimant tells relevant parties (executors, trustees, beneficiaries) in writing about the claim, with a brief outline. Recipients should acknowledge this within 21 days. This is called a preliminary notice.

2. The claimant sends more details in a Letter of Claim to the relevant parties, outlining the claim's facts and including supporting documents.

3. Recipients respond to the letter within 21 days through a Letter of Response, presenting their responses and supporting documents, or through a Letter of Settlement usually sent 'without prejudice,' meaning it's confidential and not to be used in court.

During the pre-action protocol, parties are encouraged to get expert evidence and share information, like medical records, statements from the solicitor who made the will, or valuation evidence. If the deceased's mental capacity is being called into question as a reason a will may be invalid, parties can ask the GP to create a report, which should be shared with all parties.

Start court proceedings

If your claim is denied or no settlement is reached, you can go to court. It's crucial to speak to a solicitor for advice at this stage, as there are risks if your claim isn't successful, such as having to pay legal costs.

If you decide to start court proceedings, you'll prepare a claim form detailing your claim. Usually, a barrister will handle this under the guidance of your solicitor, and the claim documents will be given to the defendant(s) or their solicitors.

After serving the claim form, documents may be exchanged between parties, and you may gather more expert evidence to support your case. The opposing parties will do the same to support their side.

This process is governed by Civil Procedure Rules, which must be followed closely, as not doing so can impact the outcome of your claim and who might be responsible for paying legal fees, including solicitor's fees.

Get an outcome

When deciding if a legal claim on an estate is valid, the judge will consider:

• The financial resources and needs of the applicant and others involved;

• The deceased's obligations and responsibilities to the claimant;

• The size and nature of the estate;

• Any physical or mental disabilities of individuals involved;

• Conduct of the parties involved throughout proceedings;

• Any other relevant matters.

If you take your case to court, you might not win, and you could end up paying legal fees for both sides. It's important to consider this possibility before pursuing a claim against an estate and to seek advice from a solicitor.

What are the potential outcomes of a legal claim against an estate?

If the court does not agree with your claim and rules against you, you might have to pay both your costs and the other side's costs, depending on the situation. You also won't get what you were asking from the estate.

Executors can ask for reimbursement of their legal costs from the estate, especially if they acted reasonably in seeking legal advice.

How long do you have to make a legal claim on an estate?

Once a Grant of Probate or Letters of Administration has been issued, claimants have six months to file a claim against the deceased's estate. Sometimes, the court may extend this deadline, but it's not guaranteed.

Because of this six-month rule, executors are often advised to wait six months before distributing assets to allow for potential claims.

If they distribute assets before this and don't have the funds to cover a claim (or appropriate insurance), executors might have to pay from their own pocket.

Can you claim against an intestate estate?

Yes, you can make a claim against an estate when the person dies without making a will if you are a relative or dependent and you’re not happy with what you were left, or you weren’t included in the will at all. 

How do I claim a debt against an estate?

If a person dies with debts in their name, the estate becomes responsible for paying off those debts. The executor has the job of settling sole debts using estate funds.

If the debts are in multiple people's names, the surviving debtors are responsible for settling them.

Creditors seeking to recover money owed after the debtor's death usually won't need to go to court if the executor of the will manages the estate property and there are enough funds in the estate to settle the debts.

How to avoid legal claims on an estate

Estate planning is crucial to ensure your assets are distributed according to your wishes after your passing. However, there's always a risk of a family member or dependent contesting your will or making a legal claim on your estate.

To minimise this risk, ensure your will is valid, properly witnessed by the right people, and clearly worded. Consider getting an independent assessment of your mental capacity to include with your will if capacity might be questioned.

In the UK, there's no requirement to leave assets to specific family members, so you can exclude someone if you wish.

To strengthen your decision's validity, you might explain your reasons for excluding someone in the will, a letter of wishes, or discuss it openly with your loved ones.

When your reasons are well-known or documented, it's harder for someone to make a claim or a court to consider an omission unjust and grant a claim from an excluded family member.

How can Lawhive help you make a claim on an estate?

Do you feel you've been unfairly left out of a loved one's will or think you may be entitled to more from their estate? Lawhive's network of expert wills, trust, and probate solicitors is here to help you make a legal claim on an estate.

To get started, contact our Legal Assessment Team for a free case evaluation and guidance.