When most people write a will, dividing everything equally between their children or loved ones feels like the obvious and fair thing to do. In many cases it is. But equal does not always mean fair – and an equal split that ignores the real circumstances of your family can cause hardship, resentment, and costly legal disputes after you are gone.
This guide explains when equal inheritance works well, when it does not, and what you can do to make sure your will reflects your true intentions.
Why Equal Does Not Always Mean Fair
Families are rarely made up of people in identical situations. At the time you write your will, your beneficiaries may be in very different positions – financially, physically, and emotionally. An equal share on paper can produce a deeply unequal outcome in practice.
Consider these common situations:
- One child is financially comfortable; another is struggling.
- One child gave up work to care for you; another lives abroad and had no involvement.
- You have already given one child a significant sum of money – perhaps to help buy a home.
- A vulnerable family member needs ongoing financial protection, not a lump sum.
- You have remarried and have children from a previous relationship.
In all of these situations, a will that simply says “divide equally” may not reflect what is actually fair – and it may not hold up legally either.
The Legal Risk: The Inheritance Act 1975
Under the Inheritance (Provision for Family and Dependants) Act 1975, certain people can challenge a will in court if they believe it fails to make reasonable financial provision for them. This applies even if your will is technically valid.
Who can make a claim?
The following people have the right to apply to the court:
- A spouse or civil partner
- A former spouse or civil partner who has not remarried
- A partner who lived with the deceased for at least two years before death
- Children (including adult children)
- Anyone treated as a child of the family
- Anyone financially maintained by the deceased
What does the court consider?
When deciding whether a claim succeeds, the court looks at:
- The financial needs and resources of the applicant
- The size and nature of the estate
- Any physical or mental disabilities of the applicant
- The obligations the deceased had towards them during their lifetime
For most applicants, the question is whether the will provides enough for their day-to-day needs. For a spouse or civil partner, the court applies a wider test. Crucially, an equal division can still be legally challenged if it leaves someone without reasonable provision.
Six Situations Where Equal Inheritance Can Cause Problems
1. Beneficiaries With Very Different Financial Needs
If one child is financially secure and another is in genuine hardship, an equal split may leave the vulnerable child without meaningful support. While there is no automatic legal right for an adult child to inherit, a court may find an equal division unreasonable where an obvious financial need has been ignored. A larger share, a housing provision, or a trust arrangement may be more appropriate.
2. A Family Member Who Provided Unpaid Care
One of the most common sources of family disputes involves a child who gave up paid work, career progression, or personal independence to care for an elderly parent. If that contribution is ignored and the estate is divided equally, the carer may be left in genuine financial difficulty. A fair will might provide a larger share, a right to remain in the family home, or a structured trust to reflect that sacrifice.
3. Significant Lifetime Gifts Already Made
If you have already given one child a substantial sum – for example, to help them purchase a home or start a business – an equal division on death may produce an unequal overall outcome. The child who received nothing during your lifetime ends up with less in total. Adjusting shares in your will to reflect previous gifts, or using a discretionary trust, can help achieve true fairness. Keeping clear records of any lifetime gifts is essential.
4. A Financially Dependent Person
If someone has been financially reliant on you – perhaps living in your home rent-free or receiving regular financial support – they may have a strong claim under the 1975 Act if your will makes no provision for them. An equal share between other beneficiaries may do nothing to address their situation. Specific provision for housing or ongoing maintenance may be necessary.
5. Assets That Cannot Easily Be Divided
Equal division becomes complicated when the estate includes assets that cannot simply be split – such as a family home, a farm, or a business. Forcing a sale to achieve a nominal equality can destroy the very thing you intended to pass on. A fairer approach is to allocate specific assets to the beneficiaries best placed to receive them, and compensate others through different parts of the estate or through an insurance policy.
6. Blended Families
Where two people with children from previous relationships marry or remarry, equal inheritance between all children on both sides can produce unintended results. Assets that were inherited from a previous partner, or accumulated during a first marriage, may end up passing to stepchildren for whom they were never intended. Life interest trusts, ringfencing arrangements, and careful drafting are all tools that can ensure assets return to the right family line.
How to Make Your Will Fair – and Legally Robust
Unequal provision can be entirely legitimate – but it needs to be handled carefully. A will that treats beneficiaries differently without explanation is more likely to be contested. Here is how to strengthen your position:
Write a letter of wishes
A letter of wishes sits alongside your will and explains your reasoning. It is not legally binding, but it provides important context and can be persuasive evidence if a claim is made. It should be carefully written – inaccurate or exaggerated reasoning can actually increase the risk of a challenge rather than reduce it.
Keep records of lifetime gifts
Document any significant financial support you have given during your lifetime. This makes it easier to explain why shares have been adjusted and helps your executors deal with any queries.
Consider the needs of all your beneficiaries
Think honestly about the financial situation, health, and circumstances of everyone who might expect to benefit. A will that demonstrates you have considered each person’s needs is harder to challenge.
Use trusts where appropriate
Trusts are a flexible and powerful tool. A discretionary trust, for example, allows trustees to distribute funds according to need over time, rather than making fixed decisions now about an uncertain future.
Review your will regularly
Circumstances change. A will that was fair when you wrote it may no longer reflect reality five years later. Review your will after major life events – marriage, divorce, a new child, a significant change in anyone’s financial position.
Frequently Asked Questions
Does a will have to be divided equally between children?
No. There is no legal requirement to divide your estate equally between your children. You are free to leave different amounts to different people, or to leave some children more than others, provided your will is valid and you have considered the needs of anyone who might have a claim under the Inheritance Act 1975.
Can an adult child challenge a will in England and Wales?
Yes. An adult child can apply to court under the Inheritance (Provision for Family and Dependants) Act 1975 if they believe the will fails to make reasonable financial provision for them. However, adult children face a higher threshold than a spouse – the court will consider their financial needs, the size of the estate, and the reasons for any exclusion or reduced share.
What is a letter of wishes and should I write one?
A letter of wishes is a document that sits alongside your will and explains your reasons for the decisions you have made. It is not legally binding, but it can help your executors understand your intentions and can be used as evidence if your will is challenged. It is strongly recommended where shares are unequal or where the reasoning may not be obvious.
Can a spouse be left out of a will?
Technically yes, but a surviving spouse or civil partner has one of the strongest rights to claim under the 1975 Act. The court can make substantial provision for a surviving spouse, beyond simple day-to-day maintenance, and a will that ignores a spouse entirely is very likely to be successfully challenged.
What is a discretionary trust and when should I use one?
A discretionary trust is a legal arrangement in which assets are held by trustees who have the flexibility to distribute them between a group of beneficiaries according to changing needs and circumstances. They are particularly useful where a beneficiary is vulnerable, where future needs are uncertain, or where equal provision now would not reflect what is truly fair over time.
What happens if I do not update my will after a major life change?
An outdated will can produce unintended and unfair results. For example, a will written before a remarriage may not reflect your current wishes, and may also create legal complications. It is important to review your will after significant life events such as marriage, divorce, the birth of a child, or a major change in anyone’s financial circumstances.
Is equal inheritance safer from a legal challenge?
Not necessarily. An equal division that leaves a dependent family member without reasonable provision can still be challenged under the 1975 Act. The question is not whether shares are equal, but whether the will makes reasonable financial provision for those who have a claim. A well-reasoned and appropriately unequal will can be more legally robust than a poorly considered equal one.
