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  • Contesting a Will? Cohabiting Couples - Your Rights Under the Inheritance Act
What invalidates a Will
Contesting a Will? Cohabiting Couples - Your Rights Under the Inheritance Act

This article examines cohabitation and maintenance rights under the Inheritance (Provision for Family and Dependants) Act 1975.

Inheritance (Provision for Family and Dependants) Act 1975

The usual position in English law is that if there is no Will, or the only Will that exists is determined to be invalid, the estate will be distributed in line with the rules of intestacy. Equally, if there is a properly executed Will, English law asserts the importance of respecting the wishes of the deceased, even when their wishes may not necessarily be what family and friends are expecting.

However, this assertion is not without certain challenge and it is possible under the Inheritance (Provision for Family and Dependants) Act 1975 (the “Act”) for a spouse and certain other classes of eligible individuals to contest a Will and bring a claim against the deceased’s estate if that person can show that the Will fails to make reasonable financial provision for them. Contesting a Will is something which has become more common over the years and it is for the court to decide to what extent to exercise its powers under the Act. In this article we will be examining the relief under section 1 of the Act, in particular sections 1(1) (e) and 1(1A).


If you live together and are not married you are in a different legal position from those couples who are married. Cohabitees in general receive much less protection from the law than spouses or civil partners and whilst the courts are willing to embrace modern times, they cannot change the substantive law and the financial provision available to cohabiting couples.

In circumstances where the deceased has not made a provision in their Will, a cohabitee can make a claim under section 1(1A) provided they have lived in the same household as the deceased for at least two years and were living as though they were husband and wife. Arguably, cohabitees face more stringent requirements than any other class of eligible individual as they must show that the reasonable financial provision for which they are claiming is required for their maintenance. If a cohabitee is shown to have had a comfortable income of their own, an award for reasonable financial provision would be unlikely as the award would not be needed to maintain them.

In the case of Gully v Dix [2004] the question of ‘living within the same household for at least two years’ was put to the test. The defendant argued that the chain of cohabitation had been broken as the cohabitee had moved out of the home she shared with the deceased shortly before his death. The significance of this case is that the court determined that it did not need to confine itself to the strict application of the two year period but it would be sensible to examine the state of affairs existing during the relationship. The court determined that their mutual society, protection and support bound them together.

In the case of Koteke v Saffarini [2005] the Court of Appeal (“CA”) was tasked with interpreting the meaning of ‘household’ under section 1(1A). The evidence in the case showed that the deceased had retained his own home, leaving there his wardrobe and possessions, and was living out of an overnight bag. The CA determined that a distinction should be made between wanting and intending to live in the same household, planning to do so and actually doing so. The significant of the CA drawing this distinction is that even though the sharing of expenses (whether that be for shopping or dining out when a couple are together in one household) was evidence of a sharing relationship, this alone was not enough to establish a joint household. This distinction was later upheld in the CA decision in Baynes v Hedger [2008].

Reasonable financial provision

As previously mentioned, under section 1(1) (e) of the Act the cohabitee must show that the reasonable financial provision for which they are claiming is required for their maintenance. The cohabitee must show that immediately before the death of the deceased they were financially dependant upon the deceased (wholly or partly) but no provision has been made in the Will.

There are two standards of ‘provision’ by which reasonable financial provision is measured; the ‘reasonableness’ standard and the ‘maintenance’ standard, both of which are case sensitive.

  • The reasonableness standard is based on what is reasonable for that person to receive and need not be for that person’s maintenance.
  • The maintenance standard is based on the financial provision that would be reasonable in all the circumstances of the case. Maintenance is not specifically defined in the Act however it has been defined by the courts by reference to what would be reasonable for that person to live on. If a Will is contested on this basis, the court must have regard to the factors set out in section 3 of the Act.

In the case of Swetenham v Walkley [2013] the County Court (“CC”) acknowledged that although the deceased had not provided the claimant with financial support during his lifetime, he had given her emotional and practical support for a significant number of years to the exclusion of all others. However, the key factor in this case was the ill health of the claimant which had declined after the death of the deceased, resulting in the claimant moving into a care home. The CC considered the claimants needs for financial support in conjunction with the factors set out in section 3 of the Act and determined that it was unreasonable that no provision had been made. The CC awarded a lump sum enabling her to purchase a care plan sufficient to meet her needs. This case highlights the weight that can be given to the factors set out in section 3 of the Act.

As can be seen above, the English courts are given a great deal of freedom in this area of law when deciding which factors are significant and which are not.

In the case of Thompson v Raggett [2018] the court was tasked with determining what amounted to reasonable financial provision for the purposes of maintenance on the facts presented. An elderly woman who had lived with the deceased as man and wife for 42 years (until she had to move into a nursing home) claimed under section 1(1) (e) that the deceased had purchased a cottage which could be adapted to her needs but the deceased died before they could move in. Despite a letter of wishes where the deceased explained that she was financially comfortable and was likely to remain in the nursing home after his death, the court considered the factors in section 3 of the Act and made an award to transfer the cottage to her, together with a monetary award to cover the costs of adapting it and the ongoing costs of her care package. This case serves to highlight that under English law it is entirely possible for a properly executed Will to be contested providing the individual contesting the will can show that the Will does not accurately reflect the true intentions of the deceased.

In the case of Ilott v The Blue Cross & Others [2017] the Supreme Court (“SC”) gave particular weight to testamentary freedom and made clear that if there is a validly executed Will that the deceased’s wishes should only be overridden in cases of genuine need. The SC considered what, in the circumstances, would amount to reasonable financial provision and determined that maintenance should mean maintenance and was by definition the provision of income rather than capital. Even though this case does not protect against the possibility of legal challenges, nor does it confirm an unassailable right to dispose of an estate as expressed in a Will, it does, however, show the approach to a complex area of law.

Contesting a Will

An Inheritance Act claim is no different from any other type of contentious litigation. Contesting a Will can be a costly process due to the variation of the work required for each case. One means by which it is possible to reduce the costs involved is through mediation. Mediation almost always brings the dispute to a close and significantly reduces the costs compared with a trial. The reason for this being is that any settlement can be more creatively structured to suit the circumstances.

For further advice on contesting a Will, please contact our Dispute Resolution Department

Before relying on this commentary please read the Reliance on information posted section in our Terms of Website Use in our Legal section. Please note that specialist advice should be taken in relation to any specific queries and the information above is provided for general information purposes only.

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