The Inheritance (Provision for Family and Dependants) Act 1975 was designed to soften the harsh edges of testamentary freedom, allowing courts to intervene where a will or the intestacy rules failed to make “reasonable financial provision” for those with a fair claim.
Half a century later, our family structures, increasingly defined by cohabiting couples, blended families and late-in-life marriages, have moved on; the statute has not. This structural mismatch is directly linked to an explosion in contentious probate work:
| Caveat applications (a key marker of a dispute) have risen 56% in five years, from 7,268 in 2019 to over 11,000 in 2024.
| Estimates suggest up to 10,000 will disputes are now occurring annually in England and Wales.
| The rise in claims, particularly by adult children, is often funded by Conditional Fee Agreements (CFAs), turning this into a high-volume litigation market.
It is time to ask whether the 1975 Act still strikes the right balance between testamentary freedom and family protection for modern claimants.
1. Cohabiting Couples: The Biggest Gap in the System
Cohabitants are the UK’s fastest-growing family type, yet the law treats them as legal strangers with no automatic share on intestacy. A surviving cohabitant can only claim under the 1975 Act if they meet the restrictive test under section 1(1BA): living “as the husband or wife” for two years immediately before death.
This current two-year requirement is a blunt instrument. It offers nothing to a partner where death occurs after three months of cohabitation, yet grants the same status to a fragile two-year relationship and a twenty-year, fully interdependent partnership.
If we already treat cohabitants like spouses for council tax, benefits and mortgages, it is incoherent to treat them as strangers upon death. The lack of clarity forces long-term partners into litigation, where their security depends on the will’s drafting, their ability to fund a claim, and the attitude of the deceased’s family.
A modernised Act must:
| Refine the definition of cohabitation, moving beyond the simple two-year test to include an “intention and inter-dependence” assessment (for example, joint children, shared property, commingled finances).
| Align the 1975 Act with broader cohabitation rights reforms that the government is already contemplating, and which have been trailed at manifesto level.
2. Step-Children: Recognised in Theory, Litigated in Practice
In standard succession law, step-children have no automatic entitlement. The 1975 Act attempts to bridge this by allowing a claim if the step-child was “treated by the deceased as a child of the family” (section 1(1)(d)).
However, this social recognition only comes into effect after an expensive, adversarial court claim. It forces long-term step-children to prove their status in the emotionally charged atmosphere following a death, the very thing family-provision law was meant to prevent.
Leach v Lindeman & Ors [1986] 2 All ER 754 (CA), while not a 1975 Act claim, illustrates the complexities in defining “child of the family”.
Sensible reform could:
| Create statutory presumptions that a step-child who lived in the same household as a minor for a defined period, or was financially maintained into adulthood, is to be treated as a “child” unless rebutted. This would reduce the need to litigate merely to establish standing.
3. Late-Life Marriages and the Disinheritance of Biological Children
One of the most litigated areas involves late-in-life remarriage, where a new will heavily favours the new spouse. A late-in-life marriage automatically revokes any existing will, often unintentionally disinheriting adult biological children.
The courts deal with these adult-child claims under the “maintenance standard” (as opposed to the “surviving spouse standard”, which is analogous to a notional divorce settlement), leading to highly fact-sensitive and often uncertain outcomes.
Ilott v The Blue Cross and others (formerly Ilott v Mitson) [2017] UKSC 17 demonstrated the highly restrictive approach to adult-child claims, particularly where the child is financially independent.
The claim of a surviving spouse is often viewed more generously, as the court considers what they might have received had the marriage ended in divorce (section 3(2) of the 1975 Act).
A modernised 1975 Act needs guardrails. Amending the section 3 factors should be considered so that courts must expressly consider the long-standing expectations of biological children in late-life remarriage cases, especially when the will makes a radical departure from prior provision.
Reform could:
| Encourage or default to dual-protection structures like life-interest trusts, where the new spouse has security for life, but capital is preserved for the biological children on their death.
| Amend the statutory factors so that courts must expressly consider the long-standing expectations of biological children in late-life remarriage cases, alongside the needs of the new spouse.
4. A Targeted Reform Agenda
The solution is not to import the rigid constraints of the French forced-heirship model, where estranged children are guaranteed a fixed share and step-children are unprotected. That would abolish testamentary freedom and replace it with rigid arithmetic.
The strength of the 1975 Act was always its balance: freedom of testation tempered by a limited, needs-based safety net. The goal is simply to re-weave that safety net for the modern family:
| Upgrade cohabitants’ status and clarify eligibility.
| Elevate long-term step-children via presumptions to reduce litigation.
| Install guardrails around late-life will changes.
| Preserve freedom, but clarify the statutory guidance to reduce uncertainty.
The litigation statistics are not a sign the 1975 Act is working well; they are a symptom of a structural mismatch between the statute and modern family life. At fifty, the Act remains an elegant piece of architecture, but the building it sits in has been fundamentally remodelled. The statute needs to catch up to protect families and cut down on the rising tide of expensive, emotionally devastating claims.
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