Under the laws of England and Wales, an individual has complete testamentary freedom. This means that you have the right to leave your estate to whoever you choose.
Certain classes of family members and dependants can, however, challenge your will after your death under the Inheritance (Provision for Family and Dependants) Act 1975 (1975 Act), if they feel that inadequate provision has been made for them.
On what grounds could someone make a 1975 Act claim?
In order for someone to commence a 1975 Act claim, they would need to show that they have maintenance needs and the provision they have received from your estate is not reasonable to meet those needs.
Where, for example, your children are grown up and self-sufficient, their ability to use the 1975 Act is limited: just because they feel unfairly treated, does not mean that they are necessarily entitled to a bigger slice of the pie.
How much could they claim?
The level of provision that a claimant bringing a claim under the 1975 Act can hope to receive will depend on whether they fall within the category of spouse or civil partner, or one of the other categories, which include former spouses or civil partners, your children, someone you treated as a child, or someone who you maintained prior to your death.
Your spouse or civil partner could expect to receive from the court ‘such financial provision as it would be reasonable in all the circumstances of the case for a husband or wife to receive, whether or not that is required for his or her maintenance’.
For all other categories of claimant, they could expect to receive such provision as would be reasonable for them to receive for their maintenance only.
How can I avoid my will being challenged?
The best way to avoid your will being challenged after you die is to consult a professional advisor, who can consider your circumstances and ensure you have done everything possible to prevent this eventuality.
Caroline Miller TEP is a Partner at Wedlake Bell LLP in London, UK