The Question
I have been unfairly left out of my father’s will. I live in a house he purchased and when he was alive he always said ‘don’t worry that house, it is yours’.
Over the past two years I have been paying the mortgage by sending the money direct to the bank from my account. But now the Will has been read and I realised he must have changed it! What can I do?
Deryn’s Answer
I am very sorry to hear of the loss of your father and the stress that you may lose your home. There are a couple of potential actions that might help you.
1. A claim under the Inheritance Act
Assuming the will itself is valid, the starting point is that your father could leave his Estate however he saw fit. However, this can be challenged if you were financially dependent on him and have not been provided for adequately.
As a child of the deceased, you can bring a claim under the Inheritance (Provision For Family And Dependents) Act 1975 (“the Inheritance Act”). This would allow the court to change the terms of the will after considering:
- the financial resources of the person making the claim
- your father’s moral obligations to you
- the size and nature of your father’s estate
- any physical/mental disability suffered by you
- anything else which may be relevant, for example, the conduct of you and the executors of the estate
There is no automatic right for adult children to receive an inheritance, and if an award is made it will be limited to only what is reasonably required to maintain you.
This could mean that you are given a sum of money rather than receiving the entire property, or that other’s needs are considered greater than your own.
You have six months from the date of the Grant of Probate to bring a claim so you would need to act promptly to avoid being time-barred.
2. Constructive trust/proprietary estoppel
These types of claim give a court the discretion to take action to prevent unfairness or unconscionable conduct.
A court may consider that you may own all or part of the property under a trust if you can show there was a common intention between you and your father that this would be the case.
You would also need to show that as a result you acted to your detriment. In this case you might wish to argue that when your father told you, “Don’t worry that house it is yours”, and you then paid the mortgage, a trust was created in which you became an owner of the property.
Alternatively, proprietary estoppel is a principle that can apply when the legal owner of a property makes a promise to someone else, who then relies on that promise and acts to their detriment.
This has been used in cases involving farms, where someone has worked for very long periods on the basis that they would be left the land in a will. Here courts have decided that it would be unconscionable for that promise to be broken and awarded them the farm.
These cases turn on their individual facts and can be hard to prove where evidence is largely based on verbal exchanges, especially as one party is now dead.
The level of detriment will also be relevant, and if you have only made a few mortgage payments a court may consider you can be compensated with money rather than by being awarded the entire property.
Deryn Fisher is a litigation solicitor at Parfitt Cresswell Solicitors
