In England and Wales, the principle of testamentary freedom applies. This means you are generally free to leave your “Estate” — your property, money, possessions and personal belongings — to whomever you choose. There are no automatic rules dictating that your Estate must pass to specific family members in your Will.
This differs from some other jurisdictions where “forced heirship” or succession rules apply, restricting who can inherit.
However, testamentary freedom in England and Wales is not absolute. The Inheritance (Provision for Family and Dependants) Act 1975 creates an important exception.
What Is the Inheritance (Provision for Family and Dependants) Act 1975?
The 1975 Act allows certain individuals to challenge a Will (or the Intestacy Rules, where there is no Will) if they believe the deceased failed to make “Reasonable Financial Provision” for them.
It is important to understand that not everyone can bring a claim — and not every claim will succeed.
Who Can Make a Claim?
Only specific categories of people connected to the deceased are eligible to apply and these are:
- A spouse or civil partner of the deceased
- A former spouse or civil partner of the deceased (provided they have not remarried)
- A cohabiting partner who lived with the deceased for at least two years before death
- A child of the deceased (including adult children)
- Someone treated as a child of the family by the deceased
- Someone who was being financially supported, wholly or partly, by the deceased immediately before death
Meeting the eligibility criteria does not automatically mean a claim will be successful. The court must decide whether reasonable financial provision has been made.
What Is “Reasonable Financial Provision”?
What is considered “reasonable” depends on the applicant and their circumstances.
For spouses and civil partners:
The court considers what would be reasonable in all the circumstances, whether or not it is required for maintenance. This can go beyond basic living expenses.
For all other applicants:
Provision is limited to what is reasonable for their maintenance. This does not necessarily mean a share of the Estate, but rather what is needed to meet financial needs.
What Does the Court Consider?
Section 3 of the Act sets out the key factors the court will assess, including:
- The financial resources and needs of the applicant
- The financial resources and needs of other beneficiaries
- The size and nature of the estate
- Any obligations and responsibilities the deceased had towards the applicant
- Any physical or mental disability of the applicant
The court has wide discretion, which means outcomes can vary significantly depending on the individual circumstances in each case.
How Long Does Someone Have to Bring a Claim?
A claim must generally be issued within six months of the Grant of Probate (or the Grant of Letters of Administration if there is no Will), however, the court can allow claims to be made even after this time period has elapsed.
Whether a claim will be allowed to be made ‘out of time’ can be difficult to predict. For example, in the case of Cowan v Foreman [2019] EWHC 349 (Fam) the court refused an IPFDA claim from being made 17 months after the deadline even though the parties had no issues with the delay.
Alternatively, in the case of Bhusate v Patel [2019] EWHC 470 (Ch), a claim was admitted by the court a record 25 years and 9 months after the deadline.
Acting promptly if you think there is a claim is crucial, as late applications are only allowed in limited circumstances.
How Can You Reduce the Risk of a Claim Against Your Estate?
While you cannot completely prevent someone from bringing a claim, there are practical steps you can take to reduce the risk of a successful challenge.
Keep Your Will Up to Date
Ensure your Will reflects your current family and financial circumstances. Relationships and dependencies can change over time, and your Will should be updated accordingly to reflect this.
Consider Potential Claimants
Think carefully about whether anyone might reasonably expect provision from your Estate. For example:
- A cohabiting partner who was living with you at the time of your death and the household bills were largely paid by you.
Thoughts
Family dynamics can be complicated and can change throughout your lifetime.
If you are thinking about making a Will, or perhaps already have a Will and are thinking to update it, you should give careful consideration before deciding not to include someone in your Will who is entitled to benefit from your Estate.
You should be aware that they could bring a claim against your Estate after your death.
To protect against any such claim being successful, you could do a detailed Letter of Wishes explaining why you have chosen not to include them in your Will.
Alternatively, you should consider making at least a small provision for them in your Will to demonstrate that you have taken them into account. This could reduce the risk of a claim being made.
This is why it is also important that a Solicitor advises you and prepares your Will for you. While you could easily prepare a Will yourself, a Solicitor will have the legal expertise and knowledge to identify any issues which you may perhaps not have thought about otherwise.
Please contact Samiha Begum on 01892 510 222 or sbegum@bussmurton.co.uk, for more information.
For bespoke advice on this or any other area of law, get in touch with the team now.
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