Your Will can be perfectly legal and still end up in court.
Most people assume that once a Will is signed and witnessed, that’s the end of the story. It isn’t. In England and Wales, a valid Will can still be challenged after death, either because someone says it doesn’t provide for them properly, or because they argue it shouldn’t stand at all. For business owners and property investors with more complex families and larger estates, the risk is real and growing. Contentious probate claims have been rising steadily for years, and blended families, cohabiting partners and family businesses are consistently the biggest risk factors.
This week we’re looking at the main route for challenging a Will’s outcome, the Inheritance (Provision for Family and Dependants) Act 1975, alongside the separate grounds people use to attack the Will itself. Understanding both is essential if you want an estate plan that actually holds up.
What the Inheritance Act 1975 actually does
The Inheritance (Provision for Family and Dependants) Act 1975 doesn’t ask whether a Will is valid. It asks a different question: even if the Will (or the intestacy rules, if there’s no Will) is perfectly valid, has it failed to make reasonable financial provision for someone the law says should have been considered?
This matters because you can leave a legally sound, correctly executed Will, and still have it effectively overridden by a court ordering provision for someone you left out, or left with less than the court thinks they need.
Who can bring a claim
Not everyone can apply under the Act. The categories of eligible applicant are set out in the legislation, and they are:
- A spouse or civil partner of the deceased
- A former spouse or civil partner who has not remarried or formed a new civil partnership
- A child of the deceased, of any age
- A person treated by the deceased as a child of the family (commonly a stepchild)
- A person who was being maintained, wholly or partly, by the deceased immediately before death
- A cohabitee who lived with the deceased as if they were a spouse or civil partner for at least two years immediately before death
That last category is the one most people underestimate. Unmarried partners have no automatic inheritance rights under intestacy law, so a claim under this Act is often the only route a long-term cohabitee has to any provision at all, and it’s a route that’s used regularly.
The six-month time limit
Claims under the Act must generally be brought within six months of the date the grant of probate (or letters of administration) is issued. This is a hard deadline that catches out a surprising number of families, because the six months runs from the grant, not from the date of death, and executors are often unaware the clock is even ticking.
The court does have discretion to allow a late claim in limited circumstances, but that discretion is not generous, and applicants shouldn’t rely on it. From an executor’s point of view, this is precisely why estates with any hint of family tension should not be distributed in haste. Waiting out the six-month window before making final distributions is a sensible piece of protection for executors as well as beneficiaries.
Spouses versus everyone else: two different standards
One of the most important, and least understood, features of the Act is that it applies a different test depending on who is claiming.
A spouse or civil partner can be awarded whatever provision the court considers reasonable in all the circumstances, whether or not it is required for their maintenance. This mirrors the approach taken on divorce and can, in principle, extend to a fair share of the estate rather than just enough to live on.
Every other category of applicant, including children, stepchildren, cohabitees and dependants, is restricted to what is required for their maintenance. This is a narrower test. It isn’t about what would be fair or what they were expecting; it’s about what is reasonably needed to maintain a decent standard of living, taking into account their financial resources, health, and future needs.
This distinction is why a surviving spouse’s claim and an adult child’s claim can look very different in outcome, even where the facts feel similarly sympathetic.
Attacking the Will itself
Separately from an Inheritance Act claim, a Will can be challenged on the basis that it should never have taken effect in the first place. The common grounds are:
- Lack of testamentary capacity — the long-standing legal test asks whether the person understood the nature of making a Will, the extent of what they owned, who might have a claim on their estate, and was free of any disorder of mind that distorted their decisions.
- Undue influence — where someone is alleged to have pressured or coerced the will-maker into terms they would not otherwise have chosen. This is notoriously hard to prove because, unlike lifetime gifts, there’s no presumption of undue influence in Will disputes; the person alleging it has to demonstrate it directly.
- Lack of knowledge and approval — an argument that the person didn’t properly understand or approve the contents of the document they signed.
- Improper execution — a Will must be in writing, signed by the testator (or someone else in their presence and at their direction), with the intention that the signature gives effect to the Will, and that signature must be made or acknowledged in the presence of two witnesses who then also sign, all physically present at the same time. Miss any of these requirements and the Will can fail entirely.
Why blended families and cohabitees carry extra risk
Second marriages, stepchildren, and long-term unmarried partnerships are where most contested estate disputes originate. A common scenario: a testator remarries later in life, wants to provide for a new spouse while also protecting an inheritance for children from a first marriage. Handled well, with trusts and clear documentation, this can work smoothly. Handled with a simple, off-the-shelf Will, it’s a near-perfect setup for a dispute, because one side inevitably feels short-changed and both sides may have a valid legal claim.
Cohabitees add another layer. If you’ve been living with a partner for two years or more and haven’t formalised your position through marriage, civil partnership, or a clear Will, they may have grounds for a maintenance claim against your estate, and your children may separately dispute the size of any gift made to them.
Reducing the risk: drafting and evidence
You cannot claim-proof a Will entirely, but you can make a challenge much harder to sustain. In practice, this means:
- Using a solicitor-supervised drafting and execution process rather than a DIY or unsupervised template Will, so execution formalities are beyond doubt.
- Recording the reasoning behind unusual or unequal gifts in a separate letter of wishes, so intentions are documented in the testator’s own words.
- Obtaining a contemporaneous capacity assessment, ideally from a GP, where age, illness, or a contested family dynamic makes a future challenge likely.
- Avoiding situations where a beneficiary who stands to gain is closely involved in arranging or instructing the Will, which can itself invite an undue influence argument.
- Reviewing and updating provision after marriage, divorce, remarriage, or a new cohabiting relationship, since these are exactly the life events that create eligible claimants.
- Considering trusts for blended family situations, so a surviving spouse can be provided for during their lifetime while capital is protected for children from an earlier relationship.
None of this is about outsmarting your family. It’s about being clear, being documented, and taking professional advice at the point the Will is made, when memories are fresh and evidence is easiest to capture, rather than leaving your executors to reconstruct your intentions after the fact.
If your family situation includes a second marriage, stepchildren, a long-term partner you haven’t married, or a business you want to keep out of a dispute, it’s worth having your existing Will reviewed with this Act specifically in mind. Book a discovery call with The Legacy Wills Company and we’ll talk through where your estate plan stands and what, if anything, needs strengthening.