One of the most bitter and increasingly frequent Wills disputes cases we are currently seeing is that where the children of a deceased parent seek our advice after suspecting their step-parent has changed the Will they created whilst their parent was alive and disinherited them in favour of their (the step-parent’s) own biological children. Take the following example:

Julia and Tim are the biological children of Donald and Evelyn. Donald divorced Evelyn 15 years before he died and two years later married Gwynn. Gwynn has two children from her first marriage, James and Katie.

Donald and Gwynn made Mirror Wills (explained below). When Donald died, he and Gwynn owned a property valued at £1.5 million as joint tenants. Other than sentimental items, the couple had no other significant assets.

When Donald died, the family home automatically passed to Gwynn in full, as she and Donald owned the property as joint tenants. As the value of Donald’s estate was less than £5,000, there was no requirement to seek Probate. Julia and Tim, who had a good relationship with their stepmother, assumed that they, along with James and Katie, would receive a quarter of the family home’s value under Gwynn’s Will.

Unbeknown to Julia and Tim, Gwynn tore up her copy of the Mirror Will shortly after Donald’s death and wrote a new Will, leaving the family home’s entire value to James and Katie. Julia and Tim would, therefore, not receive a penny of their father’s wealth.

Below we set out the options for Julie and Tim: a claim under the Inheritance Act 1975 and the doctrine of proprietary estoppel. But first, it is essential to clarify what a Mirror Will is.

What is a Mirror Will?

Mirror Wills are virtually identical Wills where one person in a couple leaves their estate to the other in the event of their death. In most cases, both Wills set out that one spouse will leave everything to their husband or wife and eventually, any children named in the Mirror Wills can inherit. The result is that when one spouse dies, the other is protected, and upon the second spouse’s death, the children inherit the couple’s assets.

The problem with Mirror Wills is that the surviving spouse can revoke it and write a new Will leaving their estate to beneficiaries of their choice, typically their biological children.

Can I challenge my Stepparent’s new Will?

One of the most essential qualities of a Solicitor is honesty, and the sad fact is that under English law, the options for challenging the new Will of a stepparent are limited. In most cases, if there is a Mirror Will, the surviving spouse can do what they please with the assets, including changing their Will. Hence, all the wealth passes to their biological children, cutting out the children of the deceased’s first marriage.

You may be able to challenge your stepparent’s new Will under the Inheritance (Provision for Family and Dependants) Act 1975 (Inheritance Act 1975). Any claims under the Act must be made within six months of Probate or Letters of Administration being granted. As this is a tight timeframe, contacting a Contentious Probate Solicitor is crucial as soon as you discover that your step-parent has changed their Will.

Can I bring a claim in proprietary estoppel?

Yes, and if specific promises were made to you by your biological parent, this may be the route that has the most chance of success.

Let’s use the above example of Julia and Tim to explain proprietary estoppel, as it can seem complex initially.

If either Julia or Tim can show there was a representation or assurance made to them concerning an interest in the family home and they reasonably relied on that representation to their detriment, they may have a proprietary estoppel claim. Julia and/or Tim must prove on the balance of probabilities that it would be unconscionable for the person who made the assurance or representation to go back on their word and deprive them of the proprietary interest they had been led to expect.

In Macdonald v Frost [2009] EWHC 2276 (Ch), Geraldine Andrews QC (sitting as a Judge in the High Court) stated that to qualify for proprietary estoppel, the representation or assurance must be unambiguous, and proof of this would depend enormously on the context of the case. She relied on the House of Lords decision in Thorner v Majors and others [2009] UKHL 18. In this case, Lord Walker of Gestingthorpe (with whom the other Lords agreed) said that, rather than looking for a clear and unequivocal representation or assurance, he believed that to establish a proprietary estoppel claim, the relevant assurances must be “clear enough” in the context in which they were made. His statement confirmed that an express promise was not required and that the Court would analyse the background and context in which the statements were made, albeit sometimes with sceptical scrutiny.

Wrapping up

Challenges involving Mirror Wills that have been revoked have increased substantially due to the rise in the value of property prices and the fact that divorce rates in the UK rose during the 1970s and peaked in the 1990s, leading to more blended/step-families, a situation that remains to this day. Although there is currently nothing concrete in the pipeline, it is likely that given the inherent unfairness of the current laws, which are wholly unfit for purpose given the make-up of modern families, England and Wales may look to pass legislation similar to Scotland’s ‘legal rights’ laws regarding inheritance.

In the meantime, if you have discovered that your step-parent has disinherited you, please talk to our Contentious Probate team. We will advise you honestly on the options available and the chances of you succeeding in a challenge. We can usually work on a No Win, No Fee arrangement.

We are sympathetic, understanding, and are here to help you every step of the way.

Call us on 01625 667 275 or email probate@njslaw.co.uk today to discuss your matter.