A Challenge to Testamentary Freedom: The Inheritance (Provision for Family and Dependants) Act 1975

Traditionally in England and Wales, an individual has testamentary freedom. This means that individuals have the capacity and choice to distribute their estate to whoever they wish. However, this freedom is not absolute.

The Inheritance (Provision for Family and Dependants) Act 1975 ( “1975 Act”), can be seen to challenge testamentary freedom. The 1975 Act allows certain categories of applicants to make a claim against an estate where the Deceased’s Will makes no reasonable financial provision for them.

Who can bring a claim under the 1975 Act?

Section 1 of the 1975 Act provides specific categories of individuals who may be eligible to bring a claim. These include:

• Spouses or civil partners of the deceased;
• Former spouses or civil partners (but only those who have not formed a subsequent marriage or civil partnership);
• Children of the deceased;
• Those “treated as a child” by the deceased;
• Cohabitants who had lived with the deceased for 2 years immediately prior to their death; and
• Individuals who were being ‘maintained’ by the deceased immediately before death.

What is ‘Reasonable Financial Provision’?

The concept of the Act is to provide successful applicants with what the court considers to be ‘reasonable financial provision for maintenance’. Although, what ‘reasonable’ is and the potential financial award is entirely at the court’s discretion and differs from case to case.

In the case of spouses and civil partners the legal ‘test’ is more flexible. The court  will consider what is reasonable in ‘all the circumstances’, which is broader than simply what is required for the spouse or civil partner’s maintenance.

As a starting point for spousal claims, the court considers what the spouse would have received upon a hypothetical divorce. It  may also rely on factors such as, the length of marriage and whether the spouse is entitled to any lump sums from a pension or insurance policy.

For all other categories of applicants, the court can only consider providing what it deems ‘reasonable financial provision’ for the claimant’s maintenance (if any). It is generally a question of maintaining the lifestyle the claimant had before the deceased passed away, rather than improving it financially.

If an applicant was financially dependent on the deceased during their lifetime, the court may deem it reasonable to continue this dependence after death.

Factors Considered by the Court

The court will consider several factors when determining whether reasonable financial provision should be granted from an estate. In particular, the Court will assess any award in light of the criteria in section 3(1) of the 1975 Act.

The factors include:

• The financial needs and resources of the applicant, now and in the future;
• The financial needs and resources of any beneficiaries, now and in the future;
• Any disabilities, whether mental or physical;
• The size and nature of the deceased’s estate;
• Any obligations and responsibilities that the deceased had towards the applicant; and
• Any other matter, including the conduct of the applicant or any other person in the circumstances of the case the court may consider relevant

The notorious case of Ilot v The Blue Cross is significant in emphasising the balance of testamentary freedom, whilst meeting an applicant’s reasonable financial needs, even if long-term estrangement from the deceased is a factor for the court to consider.

Any outcome is decided on a case-by-case basis.

It also important to remember that the 1975 Act is there to meet genuine financial needs, not to reward “good” behaviour, as depicted in Duggan v Duggan. The judgment in this case emphasises that care, sacrifice, and even hardship do not guarantee a greater slice of an estate.

“Reasonable financial provision” does not mean rewarding meritorious behaviour, no matter how noble the intentions or how difficult the personal sacrifices.

Time Limits for Bringing a Claim

Applicants have just six-months from the issuing of the Grant of Probate to issue a claim for reasonable financial provision or they lose their right to bring this claim forever.

This short timeframe is a reminder to act promptly in seeking legal advice. The court may consider applications out of this timeframe, but only under very limited circumstances.

In the recent case of O’Herlihy v Taylor [2026], the claim was brought four and a half years after the grant of probate was issued. The administration of the estate had long been finalised and so the court refused to exercise its discretion to extend time, despite the potential merits of the claimant’s 1975 Act claim.

How can Redkite help you?

At Redkite solicitors, we understand that inheritance disputes and navigating legal issues during such a sensitive period can feel overwhelming. Our dedicated Will, Trust and Estate Disputes team offer clear guidance and sensitive advice, ensuring that our clients are supported every step of the way.

If wish to discuss a potential claim, or need advice in relation to a inheritance dispute, please contact our friendly team of experts in our Will, Trust, and Estate Dispute department.