The death of a loved one often brings about a period of intense grief and complexity, particularly when disputes arise over their final wishes. While most people are familiar with challenging a conventional will (which dictates the distribution of assets after death), a less-understood area of law concerns “living wills.” More formally known as Advance Decisions to Refuse Treatment, these legal documents set out a person’s wishes regarding future medical care.
However, a common misunderstanding exists regarding how these two types of legal instruments—a financial will and a living will—are treated by the law. It is crucial to clarify that the Inheritance (Provision for Family and Dependants) Act 1975 is a piece of legislation that applies exclusively to the financial estate of the deceased. It has no legal jurisdiction over a living will or any medical treatment decisions.
This article, written by Blackstone Solicitors, a law firm providing services across England and Wales, will explain this critical distinction. We will detail what the Inheritance Act 1975 is for, what a living will is, and why they cannot be contested using the same legal framework. Understanding this is vital for anyone considering a legal challenge to a deceased person’s wishes.
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What is the Inheritance (Provision for Family and Dependants) Act 1975?
The Inheritance Act 1975 is a key piece of legislation in England and Wales designed to ensure that the deceased’s family and financial dependants are not left without “reasonable financial provision” from the estate. The Act allows certain categories of people to make a claim against the estate, even if they have been excluded from the will.
The primary goal of the Inheritance Act is to rectify a situation where the deceased’s will, or the rules of intestacy, have failed to provide adequately for those who were financially reliant on them. The eligible claimants under this Act are:
- A spouse or civil partner of the deceased.
- A former spouse or civil partner of the deceased who has not remarried.
- A child of the deceased (of any age).
- A person treated by the deceased as a child of the family.
- Any person who was being maintained wholly or partly by the deceased immediately before their death.
- A person who was cohabiting with the deceased for at least two years prior to the death.
The court, when considering a claim under the Inheritance Act, will look at a range of factors, including the financial needs and resources of the applicant, the size and nature of the estate, and any physical or mental disability of the applicant. Crucially, the outcome of a successful claim is a court order for a payment to be made from the deceased’s financial estate. The Act’s focus is entirely on money, property, and assets, not on medical decisions.
What is a Living Will?
A “living will” is the common term for an Advance Decision to Refuse Treatment, as defined by the Mental Capacity Act 2005. It is a legally binding document that allows an individual, while they have the mental capacity, to refuse specific medical treatments in the future should they lose that capacity.
The purpose of a living will is to uphold a person’s autonomy over their own body and medical care. The decision must be made by an adult with the capacity to understand the nature and consequences of their choice. For the refusal of life-sustaining treatment, the living will must be in writing, signed, witnessed, and contain a statement confirming it is to apply even when life is at risk.
A key point to remember is that a living will is a medical and welfare decision, not a financial one. It operates entirely independently of a person’s financial will and is governed by a completely different set of laws. The legal framework of the Mental Capacity Act 2005 places the individual’s wishes at the heart of any decision, providing a clear and legally robust way for them to refuse treatment.
Why You Cannot Contest a Living Will Under the Inheritance Act 1975
The fundamental reason you cannot contest a living will using the Inheritance Act 1975 is that the two legal instruments are designed for entirely different purposes and operate under separate legal frameworks.
- Jurisdiction: The Inheritance Act 1975 provides a legal mechanism for challenging the financial distribution of an estate. Its jurisdiction ends at the boundary of a person’s financial assets. A living will, on the other hand, deals with personal welfare and medical treatment. It has no bearing on who inherits a person’s house, money, or possessions.
- Legal Framework: A challenge to a financial will is based on grounds like undue influence, lack of testamentary capacity, or forgery. These are legal principles concerning the creation of a will and the testator’s state of mind. A challenge to a living will is based on the principles of the Mental Capacity Act 2005. The legal questions would be whether the person had the capacity to make the decision, whether it was made without coercion, and whether it is specific and relevant to the current medical circumstances.
- Remedy: If a claim under the Inheritance Act is successful, the court can make an order to provide financial support from the estate to the claimant. This remedy is entirely financial. A challenge to a living will, which would be brought before the Court of Protection, would result in a court decision on the validity of the Advance Decision and, if it is invalid, a ruling on what medical treatment is in the person’s best interests. There is no financial component to this legal process.
In simple terms, attempting to contest a living will under the Inheritance Act 1975 is like trying to use a property law statute to deal with a divorce settlement. The legal tool is not designed for the job and has no power to alter the outcome.
How a Living Will Can Be Contested
While you cannot use the Inheritance Act, it is still possible to challenge a living will, but you must do so under the correct legal framework. Any challenge would be made to the Court of Protection, which has the authority to make decisions on behalf of people who lack mental capacity.
The grounds for such a challenge would be based on the principles of the Mental Capacity Act 2005. These could include:
- Lack of Capacity: Arguing that the person did not have the mental capacity to make the Advance Decision at the time it was made.
- Undue Influence: Alleging that the person was coerced into making the decision.
- Inconsistency or Withdrawal: Claiming the person has since acted in a way that shows they have withdrawn the Advance Decision.
- Ambiguity: Arguing the Advance Decision is not specific or clear enough to be legally binding.
The legal process for this is entirely separate from a financial will dispute and requires specialist knowledge of healthcare law and the Court of Protection.
Conclusion
Understanding the difference between a financial will and a living will is not just a matter of legal formality; it is crucial for anyone seeking to challenge a deceased person’s wishes. The Inheritance (Provision for Family and Dependants) Act 1975 is a powerful tool for ensuring financial fairness, but its purpose and jurisdiction are strictly limited to the financial estate.
A living will, or Advance Decision to Refuse Treatment, is governed by the Mental Capacity Act 2005. Challenges to these decisions must be brought before the Court of Protection and must be based on grounds that relate to the validity of the decision itself, not on financial provision.
At Blackstone Solicitors, our team of experts understands the sensitive and complex nature of both financial and welfare disputes. If you have concerns about a financial will, we can advise you on your rights under the Inheritance Act. If your concerns relate to a living will, we have the specialist knowledge to guide you through the appropriate legal channels. We provide clear, professional, and compassionate advice to ensure that your legal actions are correctly targeted and have the best chance of success.
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We have a proven track-record of helping clients deal with contesting a Will. We are a multidisciplinary firm and have all the expertise inhouse to satisfy the most exacting requirements of our clients. We will guide you through all the necessary legal due diligence in a comprehensive and timely manner. We firmly believe that with the right solicitors by your side, the entire process will seem more manageable and far less daunting. (or whether) to incorporate, what kind of ownership
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It is important for you to be well informed about the issues and possible implications of contesting a will. However, expert legal support is crucial in terms of ensuring your wishes are met as you would want them to be.
To speak to our Wills and Probate solicitors today, simply call us on 0345 901 0445, or click here to make a free enquiry. We are well known across the country and can assist wherever you are based. We also have offices based in Cheshire and London.
Disclaimer: This article provides general information only and does not constitute legal advice on any individual circumstances.
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