Family property and entitlement upon death in England and Wales

Abstract

The default principle of succession law in England and Wales is that of testamentary freedom: a will-maker is free (subject to inheritance tax) to determine the destination of their property on death. The Inheritance (Provision for Family and Dependants) Act 1975, however, provides an important qualification to that general rule. It allows certain family members, including spouses, cohabitants and children of any age, as well as factual dependants, to seek discretionary court-based provision out of an estate. English Law thus contrasts both with jurisdictions where testamentary freedom is essentially absolute, and with those allocating fixed portions of the estate to certain family members. Under the 1975 Act, a claimant must show that any will and/or the intestacy rules failed to make reasonable financial provision for them, with all but spouses and civil partners having to show that such reasonable financial provision was not made for their maintenance. The intestacy rules, applicable where a deceased person does not leave a will that is both valid and comprehensive, reflect a formalistic understanding of the family. They prioritise the surviving spouse or civil partner, followed by those of surviving legal children and other descendants. This chapter explores the understanding of the family, and of familial obligation, contained in these aspects of English succession law. In doing so, it incorporates contemporary debates such as the appropriate basis on which an adult child might succeed in a claim under the 1975 Act, and whether informal cohabitants ought to be included within the intestacy rules so that they do not need to (at least threaten to) bring a claim under the Act to secure provision where their deceased partners have not left an operative will.