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When someone dies and leaves a will, the expectation is that their wishes will be followed. But English and Welsh law recognises that strict adherence to a will can sometimes leave dependants without adequate support. The Inheritance (Provision for Family and Dependants) Act 1975 gives certain people the right to apply to the court for "reasonable financial provision" from the estate — even if the will explicitly excluded them, or even if there was no will at all.
This is the law of England and Wales. The 1975 Act does not extend to Scotland, where a spouse, civil partner and children have legal rights in the moveable estate that cannot be defeated by a will, and it does not apply in Northern Ireland, which has its own statute — the Inheritance (Provision for Family and Dependants) (Northern Ireland) Order 1979.
The 1975 Act sets out six categories of people who are entitled to apply under section 1(1). You must fall into at least one of these categories to bring a claim.
A surviving spouse or civil partner can apply regardless of what the will says. This category attracts the highest standard of provision — not merely what is needed for maintenance, but what is "reasonable in all the circumstances". Courts often look at what the claimant would have received on divorce as a starting point.
A former spouse or civil partner can apply provided they have not since remarried or formed a new civil partnership. This category applies even if a financial consent order was made on divorce — though the existence of that order will weigh against the claim.
A person who lived with the deceased in the same household for at least two years immediately before the death, as if they were a spouse or civil partner. The two-year period is strict — a couple who had lived together for 18 months would not qualify. Temporary separations (such as one party being in hospital) do not break the period if the cohabiting relationship continued.
Any child of the deceased may apply — there is no age limit. Adult children regularly bring successful claims, although the courts scrutinise these carefully. An adult child who is financially self-sufficient and able-bodied will face a higher hurdle than a child with a disability or financial dependency.
Someone treated by the deceased as their own child — a stepchild, for example — can apply. Section 1(1)(d) covers a person treated as a child of the family "in relation to any marriage or civil partnership to which the deceased was at any time a party, or otherwise in relation to any family in which the deceased at any time stood in the role of a parent". The words after "otherwise" were added by the Inheritance and Trustees' Powers Act 2014: before that the category was confined to marriages and civil partnerships, and the child of an unmarried partner was outside it. That is no longer the case.
Any person who was being maintained, wholly or partly, by the deceased immediately before the death. This is a broad category that can include a friend, sibling or carer. A person is maintained where the deceased was making a substantial contribution in money or money's worth towards their reasonable needs, other than for full valuable consideration under an arrangement of a commercial nature — so a paid carer on ordinary commercial terms is not within it, while someone housed rent-free may be.
These six categories are alternatives. A claimant needs to fall within one of them, not more than one — a cohabitant of two years does not also have to show they were maintained, and a person treated as a child of the family does not also have to be a child of the deceased.
Section 4 of the 1975 Act provides that an application "shall not, except with the permission of the court, be made after the end of the period of six months from the date on which representation with respect to the estate of the deceased is first taken out (but nothing prevents the making of an application before such representation is first taken out)".
The clock runs from the grant, not the death
The six months run from the date the grant is issued, not from the death and not from when a claimant learns what the will says. The words in brackets in section 4 — added by the Inheritance and Trustees' Powers Act 2014 — mean an application can also be made before any grant has been taken out, so waiting for a grant is not required.
The court does have discretion to allow a late claim under section 4, but it uses this power sparingly. Courts will want to know why the claim was not brought in time and will consider whether the estate has already been distributed. Once assets have been paid out to beneficiaries, recovering them is far harder.
Note for executors
Section 20 of the Act protects personal representatives who distribute after the six months have run: they are not personally liable on the ground that they ought to have taken account of the possibility of a late claim. That protection is why estates are commonly not distributed until the six months have expired. Distributing inside the six months carries the personal liability the section is designed to remove.
The Act applies two different standards depending on who is making the claim.
For a surviving spouse or civil partner, the court asks what provision it would be reasonable for them to receive in all the circumstances — regardless of whether that provision is needed for maintenance. This is a significantly broader test. Courts frequently look at what the claimant would have received had the marriage ended in divorce rather than death (the "divorce cross-check"), though this is not a binding ceiling.
For all other categories of claimant, the test is whether the will or the intestacy rules fail to make reasonable provision for the claimant's maintenance. "Maintenance" has been interpreted broadly by the courts to include housing, food, medical care, and other living needs — but it is not intended to enrich the claimant or provide for luxuries. It is pitched at a level sufficient to allow the claimant to live at a standard appropriate to the circumstances.
Under section 3 of the 1975 Act, the court must consider a range of factors when deciding whether to make an order and what form it should take:
For surviving spouses and civil partners, the court additionally considers: the age of the claimant, the duration of the marriage or civil partnership, and the contribution made by the claimant to the welfare of the family (including caring for the home and bringing up children).
If the court is satisfied that the will or intestacy has not made reasonable financial provision for the claimant, it has wide discretion over the form of the order. Possible awards include:
Not every order can be revisited. Section 6 allows the court to vary or discharge an order for periodical payments while they are still running; a lump sum or a transfer of property is final once made.
A claim under the 1975 Act follows a broadly similar path to other civil litigation:
Most claims settle
Most 1975 Act claims are settled rather than tried, frequently at mediation. No official body publishes a settlement rate for this class of claim, so no figure is given here.
Where a personal representative distributes the estate after being put on notice of a claim and the claim then succeeds, the personal liability falls on them, not on the beneficiaries who received the money. That is the practical reason distributions stop once a claim is notified, whether the notice comes by letter, from a solicitor, or as court papers.
Section 20 gives the protection the other way round: a personal representative who distributes after the six months from the grant is not liable merely because a late claim is subsequently permitted. Within the six months there is no such protection, whether or not a claim has been signalled.
No official body publishes what these claims cost
There is no published scale, average or range for the cost of a 1975 Act claim, and this page does not estimate one. What is established is the structure of the risk: a successful claimant does not necessarily recover all of their costs; the court can order that costs come out of the estate, which reduces what every beneficiary receives; and a claimant who discontinues is liable for the defendant's costs to that point under CPR 38.6 unless the court orders otherwise.
Inheritance and probate disputes are not among the civil problems GOV.UK lists as covered by legal aid — that list runs to housing, protection from abuse, some family and children matters, discrimination, asylum and inquests. Eligibility for a particular case can be checked at gov.uk/check-legal-aid.
Conditional fee agreements — "no win, no fee" — are used for this kind of claim. The success fee is a percentage of the damages recovered and is payable by the client, not the losing side, so the percentage and what it applies to are the terms that determine what a claimant actually keeps.
If you are dealing with an estate — whether as a potential claimant or as an executor — these guides may help:
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