A common starting point when making a will is that beneficiaries should be treated equally. Equal inheritance is often seen as fair and easy to explain. In many cases, that is entirely appropriate.
However, equal treatment is not always the fairest outcome.
Families are rarely made up of people in identical circumstances. One child may have been supported financially. Another may have provided care. A surviving spouse may need security. A vulnerable beneficiary may need protection rather than an outright inheritance. In these situations, an equal division can produce an unfair result in practice, even if it appears fair on paper.
It can also increase the risk of a claim under the Inheritance (Provision for Family and Dependants) Act 1975.
The Inheritance (Provision for Family and Dependants) Act 1975
The 1975 Act allows certain individuals to apply to the court where a will, or the intestacy rules, fail to make reasonable financial provision.
This includes a spouse or civil partner, former spouse who has not remarried, cohabitants, children, those treated as a child of the family, and any person being maintained by the deceased.
When deciding a claim, the court will consider factors such as financial needs and resources, the size of the estate, any disability, and the obligations the deceased had towards the applicant.
For most applicants, the question is whether the will makes reasonable financial provision for their maintenance. In practical terms, that means provision for day-to-day needs. For spouses, the assessment is wider and not limited to maintenance.
This means that an equal division may still be vulnerable if it does not produce a reasonable financial outcome.
Equal Inheritance and differing financial needs
Equal division can be problematic where beneficiaries are in very different financial positions.
For example, one child may be financially secure, while another has limited income and ongoing needs. An equal share may benefit one, while leaving the other without adequate provision.
An adult child has no automatic right to inherit. However, where there is clear financial need or vulnerability, the court may question whether the will provides reasonable provision.
In those circumstances, a larger share, housing provision, or a trust may be more appropriate than strict equality.
Unpaid care
A frequent issue arises where one child has provided long-term care.
That child may have sacrificed income, career progression, or independence. If the estate is divided equally, that contribution may be overlooked.
The issue is not whether the child “deserves” more, but whether the deceased had obligations towards them. If the carer became financially dependent or had a reasonable expectation of continued support, an equal division may create hardship.
A more balanced approach might include a larger share, a right to occupy the property, or structured provision through a trust.
Lifetime gifts
Equal division on death may be unfair where substantial support has already been given during lifetime.
One child may have received help with a property or business, while another has not. If this is not reflected in the will, the overall outcome may not reflect the true history of support within the family. In these cases, strict equal inheritance can produce a result which is unequal in substance.
This can be addressed by taking lifetime gifts into account or adjusting shares accordingly. Where flexibility is needed, a discretionary trust may be considered.
Clear records are essential. If lifetime support is intended to affect inheritance, this should be reflected in the will and any letter of wishes.
Dependency
Dependency is central to many 1975 Act claims. A person being maintained by the deceased may have a strong basis for a claim.
For example, an individual living in the deceased’s property or relying on financial support may be left in difficulty if only given an equal share and no ongoing provision.
In those cases, an equal division may fail to reflect the reality of the relationship. Consideration may need to be given to housing, maintenance, or trust planning.
Equal Inheritance and indivisible assets
Equal division can create practical difficulty where the estate includes assets that cannot easily be split, such as a home, farm or business.
A forced sale may be required to achieve equality, which can undermine the purpose of the asset entirely. This is particularly relevant where one beneficiary is reliant on that asset.
A fair outcome may involve allocating specific assets to certain beneficiaries, with others compensated through different parts of the estate or insurance-backed provision, rather than insisting on strict equality.
Blended families
Blended families often highlight why equal distribution is not always equitable.
A common scenario is where two widowed individuals remarry, each with children from previous relationships. One spouse may have inherited substantial assets from their late spouse. If, on second death, the estate is divided equally between all children from both families, that may ignore the origin of part of the wealth.
In simple terms, children from one side of the family may benefit from assets that were never intended for them, particularly where those assets can be traced back to the first spouse’s estate.
An equal division in these circumstances may appear fair, but it may not reflect the underlying intention or the source of the funds.
More balanced planning may be required. This could include ringfencing inherited assets, using life interest trusts, or structuring the estate so that assets ultimately return to the relevant family line.
Reducing the risk of disputes
Equal provision can be unfair. Unequal provision can be contentious.
A disappointed beneficiary may bring a claim under the 1975 Act or challenge the validity of the will itself.
Risk can be reduced by:
- setting out reasons for unequal provision in a letter of wishes;
- documenting lifetime gifts and financial support;
- properly assessing the needs and circumstances of beneficiaries;
- reviewing the will regularly; and
- using trusts where appropriate.
A clear and accurate explanation can be valuable evidence. However, it must be carefully drafted. Inaccurate or exaggerated reasoning may increase the risk of challenge.
These steps do not prevent claims, but they strengthen the estate’s position.
Reducing risk for professional advisers
Advisers also need to manage their own risk.
Claims may arise from disappointed beneficiaries alleging negligent drafting or advice. The principles in White v Jones make careful process essential.
This should include:
- taking instructions directly from the testator, ideally alone;
- keeping detailed attendance notes;
- identifying potential claimants;
- advising on the risk of a 1975 Act claim;
- recording that advice clearly;
- assessing capacity carefully and following the golden rule where needed;
- supervising execution properly; and
- maintaining a clear and organised file.
A well-documented file is often critical, particularly where a Larke v Nugus request is made after death.
Conclusion
Equal inheritance is often seen as the safest option, but it is not always the fairest.
Beneficiaries may have very different needs, expectations and vulnerabilities. A will that ignores those differences may create hardship and increase the risk of a claim under the Inheritance (Provision for Family and Dependants) Act 1975.
Good estate planning looks beyond percentages. The fairest outcome is often not an equal one, but one that reflects the reality of the family and is properly explained.
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This article is provided for general information only and does not constitute legal advice. Any wording or clauses referred to are illustrative and should not be relied upon as precedent without full consideration of the client’s circumstances, the will as a whole, and the law in force at the relevant time.
