Can your Will be challenged? Testamentary freedom explained

One of the fundamental principles of English law is the concept of testamentary freedom – that you can leave your assets to whoever you wish. i.e. ‘your money, your choice’.

However, many people are surprised to learn that certain family members and dependants may be able to challenge the distribution of an estate if they have not been left reasonable financial provision.

Understanding these potential claims is an important part of effective estate planning and can help reduce the risk of disputes after death.

The Inheritance (Provision for Family and Dependants) Act 1975

Your freedom to distribute your estate as you see fit is not absolute. It is limited by the Inheritance (Provision for Family and Dependants) Act 1975 (the ‘1975 Act’). 

The 1975 Act says: You have the right to choose your beneficiaries… but you cannot use that right to leave those who depend on you empty handed. 

If a Will (or, if you don’t have a Will, the rules of intestacy) fails to make reasonable financial provision for certain people, the 1975 Act gives them the legal right to challenge it in court. 

Who can challenge your Will?

The 1975 Act restricts claims to specific categories of eligible people. These are: 

• Spouses or civil partners 
• Co-habiting partners (if you have lived together for at least two years prior to your death) 
• Children (including adult children) 
• Anyone treated as a child of the family (e.g. stepchildren) 
• Financial dependants (i.e. anyone you were financially supporting before your death) 

What will the court consider?

If an eligible person brings a claim, the test applied by the court is: Did your estate make reasonable financial provision for them?

There are two standards of provision. If the claimant is a spouse or civil partner, the provision required is based on what is reasonable for them to receive. In all other cases, the provision required is based on what is reasonable for them to receive for their maintenance (i.e. what would be reasonable for that claimant to live on). 

In reaching its decision, the court will take account of a range of factors, including:  

• The claimant’s financial needs 
• The size of your estate 
• The financial needs of the beneficiaries that you choose to receive assets against those that you choose to exclude. 

If the court determines that your estate does not make reasonable provision for the claimant, then the judge can effectively rewrite your Will to rectify this.  

What does this mean for estate planning?

While testamentary freedom remains a cornerstone of English succession law, the 1975 Act provides an important safeguard for spouses, dependants and certain family members who may otherwise be left without adequate financial provision.

When preparing or reviewing a Will, it is important to consider not only who you wish to benefit, but also whether there are individuals who may have a potential claim against your estate. Taking advice at an early stage can help minimise the risk of disputes and ensure that your wishes are more likely to be carried out as intended.

Testamentary freedom may be the starting point, but the 1975 Act serves as an important reminder that estate planning is not always simply a matter of ‘my Will, my choice’. 

If you would like further information, please get in touch.