Doctrine of Election in a Will UK: Taking the Benefit and Bearing the Burden

Updated: 18 May 2026 • Reading time: 7 min

Equity operates on the principle that a person cannot take the benefit of an instrument without also accepting its burdens. When a testator’s will purports to give away property that actually belongs to someone else — while also leaving that same person a benefit — equity puts that person to an election: they must choose between taking the testator’s gift and keeping their own property, but not both. This is the doctrine of election.

When Does Election Arise?

Three conditions must be satisfied before the doctrine is engaged:

The will purports to dispose of property belonging to another — the testator must have attempted to give away something they did not own
The will confers a benefit on the owner of that property — the same person must receive something under the will; without a benefit there is nothing to elect between
The testator intended both gifts as part of a single scheme — the court must be satisfied that the testator saw the two provisions as connected, not merely coincidental

If these conditions are met, the owner of the “wrongly given” property (the electee) is put to their election. They cannot take the benefit and keep their own property.

A Worked Example

A’s will states:

Clause 1: “I give Greenacre Farm [which belongs to B] to C.”
Clause 2: “I give my investment portfolio to B.”

B must elect:

Confirm the will: B conveys Greenacre to C and receives the investment portfolio
Elect against the will: B keeps Greenacre, but C is compensated from the portfolio (up to the value of the farm); any surplus goes to B

If B elects against the will and keeps Greenacre, B does not have to convey the farm. But B loses the investment portfolio to the extent needed to compensate C for the farm. B is not enriched: C gets compensation and B gets the farm but not the portfolio.

How Election is Made

Election may be express (a formal written notice to the executor) or implied by conduct — where the electee, knowing all material facts, acts in a way consistent only with one of the two choices. Receiving and spending the legacy, for example, is likely to constitute an implied election to confirm the will.

Knowledge required

An electee cannot make a binding implied election without knowledge of all material facts. Acting in ignorance of the election requirement does not fix the choice. Courts are slow to find implied election from ambiguous conduct and will usually give the electee an opportunity to elect formally.

Election vs Approbation and Reprobation

The broader doctrine of approbation and reprobation — also called “blowing hot and cold” — prevents a beneficiary from accepting a benefit under a will and then seeking to challenge another provision. If a beneficiary has accepted and enjoyed a gift, they cannot later resile from the instrument that gave it to them merely because a different clause works against their interests. The equitable maxim is: qui approbat non reprobat — one who approves cannot reprobate.

The doctrine of election is more specific: it focuses on the testator purporting to dispose of the electee’s own property. Approbation and reprobation applies more generally to any party who wishes to cherry-pick provisions from an instrument.

Drafting to Avoid Election Disputes

Do not include in your will property you do not own. If you believe a family member should give up their property after your death, the correct mechanism is a lifetime deed or agreement.
Clarify ownership before making the will. Disputes about whether a business, the family home, or an investment account belongs to the testator or a family member are common — resolve them before the will is drafted.
If election may arise, address it in the will. For example: “If my executors consider that an election arises under this will, they shall hold the relevant legacy on trust pending the electee’s election within six months.”

Frequently Asked Questions

What is the doctrine of election in the law of wills?

The doctrine of election is an equitable principle that requires a person to choose between two inconsistent rights or benefits where those rights arise under the same instrument. In the context of wills, it arises when a testator's will purports to give away property belonging to someone else (the 'electee'), while also giving a benefit to that same person. The electee cannot simultaneously take the benefit the testator gives them and keep their own property which the testator has purported to dispose of. They must elect: (a) to confirm the will — give up their own property to the person the testator tried to give it to, and take the benefit the testator gave them; or (b) to take against the will — keep their own property and give up the benefit the testator gave them.

What are the conditions for the doctrine of election to apply?

For election to be required: (1) the will must purport to dispose of property that belongs to someone other than the testator — if the testator had no interest in the property, the purported disposition is simply void and election is not required; (2) the will must confer a benefit on the owner of that property (the electee) — election requires a choice between two things; if the will gives nothing to the property owner, there is nothing to elect between; (3) the testator must have intended the two gifts to be conditional on each other — some cases require that the testator intended the disposition of the third party's property as compensation for the benefit conferred; (4) the property must genuinely belong to the electee and not be property the testator had authority to dispose of (such as joint property passing by survivorship).

How does election work in practice?

Example: A's will leaves 'Greenacre Farm (owned by B) to C' and 'my investment portfolio to B'. B must elect: (a) Confirm the will — B conveys Greenacre to C and receives the investment portfolio; (b) Elect against the will — B keeps Greenacre and gives up the investment portfolio. If B elects against the will, C (the disappointed beneficiary) is compensated from B's share. B loses the investment portfolio — but B does not have to give up Greenacre. The compensation operates by bringing the gift (the portfolio) into a notional hotchpot: C is paid out of the portfolio to the value of what C was supposed to receive (the farm), and any surplus in the portfolio passes to B. If the portfolio is worth less than the farm, C bears the shortfall.

What is the difference between election and approbation and reprobation?

Election and the doctrine of approbation and reprobation are related equitable principles but with different scope. The doctrine of election is specific: it arises when the will purports to give away a beneficiary's own property and the beneficiary must choose. Approbation and reprobation (also called 'blowing hot and cold') is broader: a party who has accepted a benefit under a transaction or instrument cannot later repudiate the same transaction where it works against them. In the will context, a beneficiary who has accepted a gift under a will and enjoyed the benefit cannot later seek to set aside another provision of the will that they dislike. The underlying principle is the same — a party must take an instrument as a whole and cannot pick and choose only the provisions that favour them.

What is the election between a will provision and statutory rights?

A specific type of election arises when a surviving spouse is left a benefit under the will but has statutory rights that conflict with it — most commonly in systems where a surviving spouse has a right to a fixed share of the estate (a 'forced share') that the will attempts to override. In England and Wales, there is no forced share for spouses in the same way as under civil law systems; however, a surviving spouse can elect between: (a) accepting what the will gives them; or (b) asserting their statutory rights to their share of jointly owned property or their rights under the Inheritance (Provision for Family and Dependants) Act 1975. A spouse cannot take a benefit under the will while simultaneously mounting a full 1975 Act claim for a larger provision — the court considers what has been received under the will in assessing any reasonable financial provision claim.

What is implied election and how is it established?

An electee can make an election expressly (by written notice) or impliedly by conduct. Implied election is established where the electee, with knowledge of the facts (the existence of the will and the nature of the choice), acts in a way that is only consistent with one of the two courses. For example, if B received the investment portfolio and used it, that would likely constitute an election to confirm the will. Critically, the electee must have had knowledge of all material facts for an election to be implied. An electee who acts in ignorance of their rights does not make a binding election. Courts are slow to find implied election from ambiguous conduct and generally prefer to give the electee an opportunity to make a formal election.

Can a testator avoid the doctrine of election through will drafting?

Yes. The simplest approach is not to include in the will any purported disposition of property you do not own. If a testator believes that a family member 'should' give up their property after the testator's death, the correct legal mechanism is a lifetime agreement (a deed of gift or contract), not a unilateral provision in a will. If the testator is uncertain whether a particular asset belongs to them or a family member (common with jointly built businesses or family homes), taking legal advice on the ownership position before making the will is essential. Alternatively, some wills include a specific provision addressing what happens if election is required — for example, directing the trustee to hold the benefit on a life interest trust pending the electee's decision.

Write a Will That Only Gives What You Own

Doctrine of election disputes arise from wills that were drafted without checking who actually owns what. WillSafe walks you through your assets clearly and helps you make accurate, legally sound gifts — so your will says what you mean and gives away only what is yours to give.

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