The law generally respects the right of an individual to choose how they wish to dispose of their property by will. This may be to family, friends, worthy causes and often some combination of the three.

If at the time you make your will you are mentally capable, are aware of the nature and extent of your property and are able to consider the people who you might have obligations to, then your choice regarding the distribution of your estate on death should be respected. You must, of course, comply with certain rules about the formalities of making a will.

One important exception to the general principle of freedom of choice is that the Court can step in to alter the distribution of property by will if a deceased person, domiciled in Bermuda, has failed to make reasonable financial provision for a limited range of individuals. These are the individuals to whom the deceased person may have owed an obligation.

Therefore, if you have a spouse, a former spouse who has not remarried, a child or a grandchild who you are maintaining in whole or in part at the date of your death then your will needs to make proper provision for these individuals. If it does not, the Court can step in to alter the way you have chosen to distribute your assets.

At first glance this interference with free choice may seem objectionable.

However, this is not the case when you dig a little deeper. Should your spouse, your former spouse, your child or grandchild seek to challenge your will after your death, then the Court will ask two questions.

First, does your will fail to make reasonable financial provision for the applicant?

Second, if the answer to the first question is yes, what provision should be made for the applicant out of the assets in your estate?

In answering the first question, the Court must take into account a range of factors in every case. These include the size and nature of the deceased person's estate, the financial needs and resources of the applicant and any beneficiaries that are named in the will and the obligations and responsibilities that the deceased person had to the applicant and the beneficiaries.

The Court must also approach the case of a spouse or a former spouse rather differently than those of a child or grandchild. When considering an application by a spouse or former spouse, the court must consider the age of the applicant, the duration of the marriage and the contribution of the applicant to the home and family of the deceased.

Most importantly, in the case of an application by a wife or husband of the deceased person, the Court must ask what financial provision the wife or husband would have received if, instead of the deceased person dying, he or she had been granted a divorce at the date of death.

In general terms, the Courts will ensure that the husband or wife of a deceased person is no worse off under the will than if there had been a division of property following a divorce. While a former spouse who has not remarried is allowed to make an application, he or she is very unlikely to be successful unless at the date of death there had not been a proper division of property following divorce.

Not surprisingly, children under 18 will also find it relatively easy to challenge a will if proper provision has not been made for them.

This is because the law recognises the obligation of a parent to support a child until the child is able to fend for itself. Adult children, on the other hand, will find it difficult to upset the provisions of a will by claiming that reasonable financial provision has not been made for them.

The law recognises that there is usually nothing unreasonable about adults who are able to earn their own living being excluded from a parent's will or having only limited provision made for them in a parent's will. In other words, freedom of choice is the main theme here.

In conclusion, if you want to avoid a judge altering the way you have chosen to distribute your estate then you will need to give careful consideration, when drawing up your will, to a range of individuals to whom you may owe a financial obligation.

Attorney Keith Robinson is a member of the Litigation and Insolvency Practice Group at Appleby. A copy of Mr. Robinson's column can be obtained on the Appleby website at www.applebyglobal.com. 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.