Cut Out of a Will: Inheritance Act Claims in England and Wales

English law begins from a proposition that surprises visitors from civil law systems: a testator may leave his estate to whomever he pleases. There is no forced heirship, no reserved portion, no legal right share. A man may disinherit his children in favour of a donkey sanctuary and the law will give effect to his wishes.

And then, having said that, English law qualifies it. The Inheritance (Provision for Family and Dependants) Act 1975 permits a defined class of people to apply to the court on the ground that the deceased's will — or the intestacy rules, where there is no will — fails to make reasonable financial provision for them. Where the court agrees, it may rewrite the distribution: lump sums, periodical payments, transfers of property, settlements.

The tension between those two propositions is the whole subject. Testamentary freedom is real and it carries weight. It is not, however, absolute, and the practical question in every case is how much weight it carries against the needs of the applicant on the particular facts. This guide sets out who may apply, what standard applies to each class, what the court actually takes into account, the deadline that catches most claimants, and what the litigation costs.

Who may apply

Section 1 of the 1975 Act lists the eligible applicants, and a person outside the list has no claim however deserving.

The spouse or civil partner of the deceased.
A former spouse or civil partner who has not remarried or formed a subsequent civil partnership — though in most divorces the financial order will have contained a provision barring any such claim.
A cohabitant who, for the whole of the two years immediately before the death, was living in the same household as the deceased as if they were spouses or civil partners. The two-year requirement is strict, and disputes about whether a couple were living together "as if" married are commonplace.
A child of the deceased, of any age. An adult child in employment is eligible to apply; whether the application succeeds is another matter entirely.
A person treated as a child of the family in relation to a marriage, civil partnership, or a family in which the deceased stood in the role of parent — the stepchild, in ordinary language.
Any person who immediately before the death was being maintained, wholly or partly, by the deceased. This is the residual category, and it is broader than people expect: it can catch a long-term partner who does not satisfy the two-year cohabitation test, an elderly relative housed rent-free, or a dependent friend.

Note also a jurisdictional precondition that is easily overlooked: the Act applies where the deceased died domiciled in England and Wales. Domicile is not the same as residence, and in an estate with international features it is the first question, not the last.

The two standards

The Act applies a different standard to a surviving spouse or civil partner than to everybody else, and the difference is fundamental.

For a surviving spouse or civil partner, the standard is such financial provision as it would be reasonable in all the circumstances for a husband or wife to receive, whether or not that provision is required for his or her maintenance. The court is directed to have regard to the provision the applicant might reasonably have expected to receive had the marriage ended in divorce rather than death — the so-called divorce cross-check, which in a long marriage with a substantial estate points towards something approaching an equal division.

For every other applicant, the standard is such provision as it would be reasonable for the applicant to receive for his maintenance. That single word does a great deal of work. Maintenance is not subsistence, and the courts have rejected the suggestion that it means bare necessities; but nor does it extend to everything the applicant might reasonably want, or to a share of the estate as such. It is provision for the applicant's day-to-day living expenses at a level appropriate to his circumstances.

Ilott and the weight of the will

The Supreme Court's decision in Ilott v The Blue Cross [2017] UKSC 17 remains the essential authority on adult children. The deceased had been estranged from her daughter for many years and left her whole estate to three animal charities. The daughter, who was in straitened circumstances and dependent on state benefits, applied under the Act.

The Supreme Court restored the modest award made at first instance and, in doing so, made several points that govern this area:

The claim is not an inquiry into the fairness of the will. The statutory question is whether the will made reasonable financial provision, judged objectively, not whether the testator behaved reasonably.
Maintenance is the ceiling as well as the floor for a non-spouse applicant. An award must be directed to the applicant's maintenance, which will rarely justify a capital sum calculated as a proportion of the estate.
Testamentary freedom retains real weight, and the deceased's clearly expressed wishes are among the circumstances the court takes into account.
Charitable beneficiaries need show no need. They take under the will and their position is not weaker for the absence of a competing financial requirement.

The practical effect of Ilott has been to temper expectations. An estranged adult child in real financial difficulty may recover something. An adult child who is comfortably off and simply aggrieved will not.

What the court takes into account

Section 3 sets out the matters to which the court must have regard in deciding both whether the will made reasonable provision and, if not, what order to make:

the financial resources and financial needs of the applicant, now and in the foreseeable future;
the financial resources and needs of any other applicant, and of the beneficiaries;
any obligations and responsibilities the deceased had towards the applicant or any beneficiary;
the size and nature of the net estate;
any physical or mental disability of any applicant or beneficiary;
any other matter, including conduct, which the court considers relevant.

Additional factors apply to particular classes: the age of the applicant and the duration of the marriage for spouses; the manner in which the applicant was being educated or trained for children; the length and basis of the maintenance for dependants.

The two that decide most cases are need and estate size. A large estate with a needy applicant and unmeritorious beneficiaries is a strong claim. A modest estate with several competing claimants is a case that ought to be mediated rather than litigated, because the costs will consume it.

Six months from the grant

An application must be made within six months of the date on which representation to the estate was first taken out. Not six months from death — six months from the grant of probate or letters of administration. The court has a discretion to permit an application out of time, but it is a discretion to be justified: the applicant must explain the delay, show that he has an arguable case, and address whether the personal representatives have already distributed the estate.

Two practical points follow. First, a standing search at the Probate Registry will tell you when the grant issues, and it costs very little. Second, entering a caveat is not the way to protect an Inheritance Act claim — a caveat prevents a grant issuing and is the instrument for challenging the validity of a will, which is an entirely different claim on entirely different grounds. Using a caveat to buy time for a family provision claim is an abuse of the process and will be struck out with costs.

The estate, and attempts to empty it

An order can be made only against the net estate. A testator minded to defeat a claim will therefore be tempted to give property away before death, or to hold assets jointly so that they pass by survivorship outside the estate.

The Act anticipates both. The court may order that the deceased's severable share of jointly held property be treated as part of the net estate. And it has anti-avoidance powers in respect of dispositions made within six years of death with the intention of defeating an application, and of contracts to leave property by will made with the same intention. Those powers are not lightly exercised — intention must be proved — but they exist, and they should be raised early where the picture suggests deliberate depletion.

Procedure and costs

A claim is brought by Part 8 claim form against the personal representatives, who should generally adopt a neutral stance and leave the beneficiaries to defend their interests. Evidence is on witness statement, addressing the section 3 factors with documentary support: income, outgoings, housing, health, and the history of the relationship with the deceased.

On costs, two beliefs need dispelling. The first is that the estate pays. It does not, as a general rule: costs follow the event, and an unsuccessful applicant will ordinarily be ordered to pay the costs of the beneficiaries who successfully defended the estate. The second is that a conditional fee agreement solves the funding problem. In Hirachand v Hirachand [2024] UKSC 43 the Supreme Court held that a success fee under a conditional fee agreement cannot be included as part of an award under the 1975 Act, so a claimant funding the case that way must expect to bear the uplift out of whatever is recovered.

The consequence is that these claims should be settled wherever they can be. A well-pitched offer, made early, is the most effective protection either side has: our guide to Part 36 and Calderbank offers explains the mechanism, and it is used in this field constantly. Mediation is close to standard practice, and a party who refuses it without good reason risks a costs sanction of its own.

Where this sits among the other claims

An Inheritance Act claim assumes the will is valid. If the real complaint is that the deceased lacked capacity, did not know and approve the contents, or was coerced, that is a probate claim on different grounds — and the two are sometimes pleaded in the alternative, though rarely with equal enthusiasm. Where the dispute is between an unmarried couple about the beneficial ownership of a house rather than about the estate, the claim is a TOLATA claim, not a family provision claim.

Comparatively, England's Act is among the most generous in the common law world in the breadth of its eligible class. Singapore's family provision legislation is much narrower, as our guide to contesting a will in Singapore explains, and Australia's state regimes take a different approach again, described in our guide to contesting a will in Australia.

If you have been left out of a will, or are a beneficiary facing a claim, the first three questions are always the same: is the applicant within the statutory class, when was the grant taken out, and what is the net estate actually worth. CommonBench's Legal Chat can take you through those and the authorities that follow from them.

This article is published by CommonBench for informational purposes only and does not constitute legal advice. If you are considering an Inheritance Act claim in England and Wales, or defending one, the deadline is six months from the grant — try CommonBench for AI-powered legal research with verified citations across five common law jurisdictions.