Left Out of the Will? Understand Your Rights Under the Inheritance Act 1975

Testamentary freedom has long been a cornerstone of the English legal system. This is the principle that a person making their will (also called a “testator”) has complete freedom to leave their assets to whomever they wished.

This contrasts from countries such as France and Spain, which have a system of “forced heirship”. This is where certain family members (such as spouses or children) must inherit a percentage of a deceased’s estate.

For centuries, testamentary freedom in England was completely unrestricted; one could leave their estate however they wished, even if their families were left destitute. These disinherited family members would have no legal remedy for this until the Inheritance (Family Provision) Act 1938 was passed by Parliament.

This legislation allowed surviving spouses, unmarried daughters, infant sons, or children whose disability meant they were unable to maintain themselves, to make a claim for a payment out of the deceased’s estate if their will (or the intestacy rules) did not make reasonable provision for them.

The criteria of eligibility were extended under the Inheritance (Provision for Family and Dependants) Act 1975 (“the Inheritance Act”) to former spouses, all children (including stepchildren), cohabitees, and anybody who was “maintained” by the deceased, to name a few.

The Inheritance Act allows the Court to make a broad range of orders to make reasonable provision, including lump sum payments, periodical payments, or for the creation of a trust, to name a few examples.

In this blog I will I explain the current legal position, explore the impact of social trends on Inheritance Act claims, discuss potential reforms to the law, and offer practical guidance on what you can do if find you have been excluded from a loved one’s will.

What is “reasonable provision”?

“Reasonable provision” is defined differently depending on who you are. A surviving spouse or civil partner is usually entitled to a higher standard of “reasonable provision” than other applicants under the Inheritance Act.

Reasonable provision for a spouse or civil partner is whatever is reasonable “in all the circumstances”. This considers a number of factors, such as the length of the marriage/civil partnership to and relationship with the deceased, and what contributions were made by the applicant to the welfare of the deceased person and their family as a whole.

The starting point which the Court adopts is the “divorce/dissolution comparator” – in other words, had the applicant and the deceased ended their marriage or civil partnership by divorce or dissolution rather than by death, how would have the assets been divided between them?

The starting point on divorce/dissolution is an equal division of assets. Therefore, the starting point for a claim under the Inheritance Act is also that the surviving spouse or civil partner receives 50% of the estate. However, that this is only a starting point; Depending on the other factors considered by the Court (which I set out below), a spouse or civil partner may be awarded more or less than 50% of the estate, or nothing at all.

The test for other applicants under the Inheritance Act is much less generous. For applicants such as children, cohabitees and other dependants, “reasonable provision” means whatever is reasonable “for their maintenance”. This means that, if the applicants needs are able to be met from sources other than the estate, their claims are less likely to succeed.

What else does the Court take into account?

The Court considers the following facts when deciding whether to make an order under the Inheritance Act:

1. The financial resources and needs of the applicant both now and in the foreseeable future

2. The financial resources and needs of other applicants both now and in the foreseeable future

3. The financial resources and needs of the beneficiaries of the estate both now and in the foreseeable future

The Court will look at the relevant parties’ income, spending, and assets. It will also look at their debts and how quickly or easily they can be paid. It will also consider their current and future earning potential, taking account of their age and health.

If an applicant under the Inheritance Act dies, their claim ends, because they no longer have financial “needs”.

4. Any obligations and responsibilities which the testator had towards any applicant or the beneficiaries of the estate

If the deceased maintained an applicant under the Inheritance Act or a beneficiary of the estate at the date of their death, the Court considers this as a relevant factor. This goes beyond a mere moral obligation; For instance, an adult child who was otherwise financially independent from their parent will not automatically succeed in their claim against the parent’s estate simply because there is a moral expectation for parents to support their children.

There will sometimes be multiple applicants under the Inheritance Act, and the Court must balance their interests with the interests of the existing beneficiaries of the estate.

5. The size and nature of the net estate

The definition of “net estate” is fairly broad. It includes the deceased’s actual assets after payment of debts and inheritance tax, their beneficial interest in property or bank accounts held in joint names, and even any transfers they made in the last 6 years of their life with the intent to avoid a claim under the Inheritance Act.

However, the Court is usually reluctant to make an order when the estate is of a relatively low value.

6. Any physical and mental disability of any applicant or any beneficiary of the estate

7. Any other matter, including the conduct of the applicant or any other person, which in the circumstances the court may consider relevant

An important factor is a deceased’s reasons for why they did not make provision for an applicant, particularly if they left a “letter of wishes” with their will to explain their decisions.

For instance, a deceased may have chosen not to make provision for somebody in their will because they have behaved badly towards them or others in the past. These circumstances are sometimes considered reasonable. Equally, a deceased’s reasons for excluding a beneficiary may be considered unreasonable.

The conduct of the parties is usually only considered “relevant” when it is very serious, such as domestic abuse or violence by or against the deceased, when it is related to the obligations and responsibilities of the deceased, when it explains why the deceased did not make provision for the applicant, and where there has been non-disclosure of assets by the parties.

An applicant can also sometimes successfully rely on promises made by the deceased that they would receive part of their estate, but did not.

Social impact on Inheritance Act claims

As we set out in our recent blog, the number of claims made under the Inheritance Act in England has increased, with approximately 1,300 claims made under the Inheritance Act in the last twelve months alone.

Younger generations are increasingly reliant on inheritance from older family members to purchase their home or pay off their mortgage, with around 2.8m people doing so in the UK in the decade up to 2021. As cost-of-living pressures continue and the intergenerational wealth gap widens, it is likely that more adult children or dependants who are disinherited or receive less than their perceived “fair share” will turn to the Inheritance Act.

The ability to research topics online has also contributed to this trend by providing easy access to information about making claims. Inheritance Act cases also receive a notable amount of media attention, both in the press and on television, further raising awareness among the general public.

Potential reforms

The reforms proposed the Law Commission in relation to tackling “predatory marriages” could also have an impact on the number of claims brought under the Inheritance Act in the future, if the Government brings them into law.

Currently, a testator’s will is automatically revoked if they get married or enter into a civil partnership, unless the will was made in contemplation of marriage or civil partnership. This is intended to protect new spouses and civil partners by guaranteeing them a proportion of the deceased’s estate on intestacy. However, the rule can be abused by those seeking to take advantage of elderly or vulnerable people who may lack testamentary capacity by marrying them in order to benefit from their estate.

The proposed reforms would abolish the automatic revocation of a will on marriage and civil partnership. Although this will undoubtedly protect those vulnerable to “predatory marriage”, it could have the opposite effect on genuine married couples or civil partners who do not plan accordingly and could therefore increase the amount of Inheritance Act claims brought by the surviving spouse or civil partner.

Therefore, understanding these proposed reforms is crucial for both legal practitioners and individuals involved in preparing wills and potential inheritance disputes.

Can I make a claim under the Inheritance Act?

If you have been excluded from a will, if you believe you have received less than your fair share of a loved one’s estate, or if your loved one died without a will and the intestacy rules does not make reasonable provision for you, you may be able to make a claim.

Only the following people are eligible to make a claim under the Inheritance Act:

1. The spouse or civil partner of the deceased
2. A former spouse or civil partner of the deceased, provided they have not remarried or formed a subsequent civil partnership
3. A person who was living with the deceased as unmarried partners for a continuous period of 2 years at the time of their death
4. A child of the deceased (including adopted children)
5. A stepchild of the deceased by marriage or civil partnership, or a child treated as a child of the family of the deceased or
6. Any person who was being wholly or partly maintained by the deceased at the time of their death.

If you are unsure whether you fall into any of the above categories, you should seek legal advice from a specialist solicitor who will be able to assist you further. It is important that you understand your eligibility, because if you pursue a claim when you are ineligible, then your claim could be struck out and you would be ordered to pay costs.

If you are eligible to make a claim, you should act quickly. Check on the Government’s online “Find a Will” service to see if a Grant of Probate has been issued, because any claim under the Inheritance Act must be commenced within six months of the date of the Grant of Probate. It is possible to bring a claim after this point, but only with permission from the Court.

Therefore, it is important that you seek legal advice from a solicitor specialising in Inheritance Act claims as soon as you become aware that you may have a claim.

Anthony Gold Solicitors’ contentious trusts and probate department are experts in this area of law and are highly experienced in both bringing and defending claims under the Inheritance Act.