Whenever a story about a contested will appears in the news, the comments section fills with a familiar refrain: “it’s their money, they can leave it to whoever they want.” As a solicitor who deals with estate disputes, I understand the instinct. English law has long championed testamentary freedom, the principle that you, and only you, decide who inherits what you leave behind. Unlike many other countries, England and Wales does not impose “forced heirship” rules that automatically reserve a fixed share of an estate for children or spouses.
But that freedom has never been absolute. Since 1938, and in its current form since the Inheritance (Provision for Family and Dependants) Act 1975, the law has recognised that testamentary freedom can sometimes produce real hardship, and that certain people close to the deceased deserve the chance to ask a court to put that right. This article looks at why the Act exists, and the kinds of situations where people are often quietly grateful it does.
What the Act Actually Does
The 1975 Act does not override a will. It does not say a testator was “wrong” to leave their estate as they did. What it does is give certain categories of people the right to apply to court if the will (or the rules of intestacy, where there’s no will) fails to make “reasonable financial provision” for them. The court then has a discretion, not an obligation, to redistribute part of the estate.
Crucially, only specific people can apply:
A spouse or civil partner
A former spouse or civil partner who hasn’t remarried
A person who lived with the deceased as a couple for the two years before death
A child of the deceased (of any age)
Anyone treated as a “child of the family” (for example, a stepchild)
Anyone who was being financially maintained by the deceased immediately before death
For a spouse or civil partner, the test is broad: what would be reasonable in all the circumstances, not just enough to live on. For everyone else, the test is a narrower, reasonable provision for their maintenance.
The Cases That Make the Act Worth Having
It’s easy to defend testamentary freedom in the abstract. It’s harder when you see, close up, what can happen without a safety net.
The second family left with nothing.
The second family left with nothing.
A man remarries late in life. His new wife gives up her own home, moves in with him, and cares for him through a long illness. He dies leaving everything to his children from his first marriage, not necessarily out of malice, but because his will was never updated after the remarriage, or because he assumed “she’ll be looked after somehow.” Without the Act, the surviving spouse could be left with no home and no income, despite years of contribution to the marriage.
The estranged parent's final word.
The estranged parent's final word.
A father cuts his daughter out of his will after a falling-out decades earlier. She has since become disabled and relies on him for financial support that continues, informally, right up until his death. The will reflects an old grievance, not the reality of her current dependency. The Act allows a court to look past the label of “estrangement” and consider actual need.
The unmarried partner.
The unmarried partner.
Cohabiting couples are still not treated the same as married couples under English law, here is no such thing as a “common law spouse” with automatic inheritance rights. A partner of fifteen years, who shared a home and finances but never married, can be left with nothing if the will favours someone else, or if there’s no will and the intestacy rules simply don’t recognise them at all. Without the Act, that partner would have no claim whatsoever.
The adult child who cared for a parent.
The adult child who cared for a parent.
A daughter gives up her career to care for an elderly parent for a decade, on the understanding, sometimes explicit, sometimes not, that she’ll be provided for. The parent dies with a will drawn up years earlier, before the caring arrangement began, leaving everything to be split equally between siblings who provided no care at all. The Act offers a mechanism to address that imbalance.
None of these people are trying to override a testator’s wishes for the sake of it. They are people who find themselves in real financial difficulty, often after years of genuine dependency or contribution, through a will that, deliberately or by oversight, didn’t account for their situation.
A Discretion, Not a Guarantee
It’s worth being honest about the limits. The Act does not entitle anyone to a “fair share” of an estate simply because they feel hard done by. Courts weigh a wide range of factors: the size of the estate, the applicant’s financial needs and resources, the needs of other beneficiaries, the applicant’s conduct, and, where relevant, how long a relationship lasted and what was contributed to it. Adult children in particular often find these claims difficult to bring successfully unless they can show genuine need or a moral claim arising from the circumstances. Claims must generally be brought within six months of the grant of probate, and the court has to balance respect for the deceased’s wishes against the risk of leaving a dependant destitute.
Why the Safety Net Matters
Testamentary freedom is a good principle. But like most freedoms, it works best alongside a limited, carefully targeted check for cases where its exercise causes genuine hardship to people the deceased was, in life, responsible for or connected to. The 1975 Act isn’t about rewriting wills to suit modern sensibilities about fairness. It’s about making sure that a small, defined group of people, spouses, children, dependants, aren’t left destitute by a document that may not reflect the realities of their relationship with the person who died.
If you’re currently reading a comment thread arguing that “it’s their money,” it’s worth remembering: the law agrees with you, right up until the point where someone who depended on that money is left with nothing. That’s the gap the Act was built to fill.
