In Bermuda our laws reflect the philosophical approach that a person has "freedom of testamentary disposition".

This means that the law generally permits a person to leave all of their property to any person of their choosing, whether during their lifetime or on their death. However, the law does allow persons to apply for a benefit, or a further benefit, from the deceased's estate.

Those who may make a claim include those who are aggrieved because they are left out of a will, those who are dissatisfied as to the amount of their inheritance, or those who are not inheriting on intestacy (where there is no will).

The persons who may make a claim include the spouse of a deceased, or a former spouse who is not remarried, unless the marriage settlement expressly excludes such applications. A child of the deceased is also entitled to make a claim for financial provisions.

This will include illegitimate and adopted children, but not a natural child who has been adopted by another. A grandchild who immediately before the death of the deceased, was being maintained by the deceased, either wholly or partially, may also make a claim.

The Court will consider common guidelines in determining whether reasonable financial provision has been made for the applicant. They will look at the financial resources and needs of the applicant, as well as other applicants and beneficiaries of the estate, now and in the foreseeable future.

They will also consider the deceased's obligations and responsibilities towards any applicant or beneficiary, the size and nature of the deceased's net estate and the physical or mental disability of any applicant or beneficiary. Let us consider the hypothetical example of Mr. John Doe.

Mr. Doe is 60 years old and the father of Adam, aged 35 who is unemployed and Eve who is an unmarried mother of 30 with one minor child, Craig aged ten. Mr. Doe is married to Doris, his second wife. His ex-wife Betty is the mother of Eve. Adam was born before the marriage, but John and Betty raised Adam and treated him as their own son.

The children Adam and Eve and Eve's son Craig all reside with Mr Doe and Doris, who both provide care and support (both financially and materially) for Adam, Eve and Craig, including career and educational support and retraining.

On his death, Mr. Doe leaves a home made will leaving the bulk of his estate to local charities.

Both Mr. Doe's present and former wives, Doris and Betty, may have grounds for a claim. The standard applicable in determining whether they have been properly provided for is higher than that for other dependants.

The standard is such financial provision is as reasonable in all the circumstances of the case for a spouse to receive, whether or not that provision is required for her maintenance.

When considering a spouse's claim, the Court will look at the common guidelines, together with special guidelines applicable to a spouse or former spouse.

With Doris' claim, the older she is and the longer the marriage, the stronger the claim.

The Court will also consider the contribution she has made to the welfare of the family including looking after the home. Finally, the Court will consider what Doris might have received had the marriage ended in divorce. Similar guidelines will be applied if Betty submits a claim.

However, as a former spouse, the terms of her decree of divorce might ban her from bringing such a claim.

If Betty was receiving support before Mr. Doe's death, the Court may vary or discharge these payments, or order that the payments continue after his death from his estate.

If Mr. Doe's children Adam and Eve each submit claims against the estate, the Court would consider the common guidelines together with the special guideline for children which takes into account the manner in which the child was being or might expect to be educated or trained.

An application for financial support could also be made on behalf of Mr. Doe's grandson, Craig.

Together with the common guidelines, the Court would take into account the extent to which and the basis on which Mr. Doe assumed responsibility for the maintenance of Craig and for how many years maintenance had been assumed. If an applicant were to be successful, the Court could make any one or more of several orders.

The options include periodical payments out of Mr. Doe's net estate, a lump sum payment, the transfer or settlement of property, or the acquisition of property for transfer.

The order could also include the variation of a marriage settlement for the benefit of either party or children of the marriage. Such claims for financial provision out of a person's estate can be prevented if proper consideration is made of the requirements of family and dependants during one's lifetime and a sensible will is prepared accordingly.

Whilst the law may permit "freedom of testamentary disposition", it is generally advisable to ensure that assets are distributed fairly and that certain persons are not overlooked.

This is true not only because of the potential for litigation, but also because of the problems that can be created in the family if they are not.

Attorney Vanessa Lovell is a member of the Trusts and Estates Department of Appleby Spurling & Kempe. Copies of Ms Lovell's columns can be obtained on the Appleby Spurling and Kempe website at www.ask.bm. This column should not be used as a substitute for professional legal advice. Before proceeding with any matters discussed here, persons are advised to consult with a lawyer.