England and Wales enjoyed testamentary freedom for many centuries which meant a person could gift their property via their will to any person. Also, a person could exclude any family member, such as, a child, from their will for any reason.
This was the case until the Inheritance (Provision for Family and Dependants) Act 1975 (the ‘Act’) came along and restricted a person’s testamentary freedom. The Act allows certain persons to make a claim against a will of a deceased person, which has failed to provide for them financially. Specific conditions must be met in order to make a claim.
First the testator must have been domiciled in England and Wales. This means the persons who’s will is being challenged after their death had their permanent home in England or Wales.
The Act states the categories of persons who can make a claim. These are as follows:
- The spouse or civil partner of the deceased.
- A former spouse or civil partner of the deceased who has not remarried or formed anther civil partnership.
- A child of the deceased.
- Any person the deceased treated as their child in relation to any married or civil partnership (stepchildren).
- Any person who immediately prior to the deceased death was being maintained either wholly or partly by the deceased.
- Co-habitants providing that for the two years prior to the deceased death the person was living in the same household as the deceased as if they were a married couple or civil partners.
Any of the above persons can make a claim if they feel the deceased failed to reasonably provide for them financially via their will. This may be because the claimant has been completely left out of the will or perhaps, they are due to receive a small amount.
The court will consider the factors under section 3 of the Act when deciding on claims. This includes the following:
- The financial needs and resources of the claimant.
- The financial needs and resources of the persons who are due to benefit under the will, known as the beneficiaries.
- Any obligations and responsibilities that the deceased had towards the claimant.
- The size and nature of the estate of the deceased, which means the value of the will, how much money or monies worth is being given.
- Any physical or mental disability of the claimant or any beneficiary.
- Any other matters, which includes the conduct of the claimant, or any other person the court may consider relevant.
If the court decides that reasonable financial provision has not been made, then it can make an award from the estate of the deceased. This ultimately means the beneficiaries of the will of the deceased will receive less than that stated in the will.
When deciding on the exact figure to award the claimant the Act states the following:
- For a spouse or civil partner, the amount of the award is essentially what is reasonable to keep them in the lifestyle they have become accustomed to.
- For any other person the amount of the award is what is reasonable for their maintenance only.
The court can give the award to the claimant in a number of ways. The most common are; a lump sum payment; periodical payments; and/or transfer of property.
As you can see the Act allows certain persons to make a claim against your will if you fail to reasonably provide for them financially after your death, therefore, restricting your testamentary freedom.