Legal News | 9.10.25

I’ll tell you what I want, what I really, really want

Claims beyond the grave: testamentary freedom and the 1975 Act

In England and Wales, individuals have what is known as ‘testamentary freedom’. This is the principle that individuals are free to choose who they want to benefit from their estate when they die. This contrasts with other jurisdictions where ‘forced heirship’ rules can apply.

Despite the presence of testamentary freedom, it is still possible for certain persons to bring a claim if they feel as though the deceased’s Will (or the intestacy rules if there was no Will) did not make reasonable financial provision for them. Claims are made under an Act known as the Inheritance (Provision for Family and Dependants) Act 1975 (the “1975 Act”).

Those who can bring a 1975 Act claim include spouses and civil partners (including former spouses), cohabitating partners (if they lived with the deceased for at least two years prior to their death), children as well as other dependants who have been financially maintained by the deceased. The deceased must also have been domiciled in England and Wales when they died.

In assessing an individual’s claim for reasonable financial provision under the 1975 Act, the Court will apply an objective test in deciding whether the deceased’s Will (or intestacy rules if there is no Will) failed to make reasonable financial provision for the claimant. The standard of provision is higher if the deceased was the surviving spouse of the deceased and the Court will consider several factors such as:

• the current income and assets of the claimant,
• their financial needs,
• the obligations the deceased had for the claimant,
• the size of the deceased’s estate, and
• any other factors the Court deems relevant.

If a Court determines that a claimant has not received financial provision, it may award the claimant a lump sum, transfer property into the claimant’s name or provide the claimant with ongoing maintenance in the form of income from the deceased’s estate. The amount awarded will depend on the factors listed above.

So, can you do what you want?  If you are concerned about a possible claim against your estate after you die, there are options available to you to mitigate the risk.

At Wansbroughs, we can advise on Will drafting and ways to protect your estate from challenges under the 1975 Act. Please contact our Private Client Team at wealth@wansbroughs.com for further information.