Succession law: the argument for testamentary freedom
To what extent should someone be able to dispose of his property
as he wishes on death? Is there a moral duty to provide for your
family? What about co-habitants and dependants? These
are fundamental and difficult questions in the law of Wills and
succession.
The argument for full testamentary freedom is that it is right
and proper for a person to be able to dispose of his property as he
wishes, just as he would be able to do during his lifetime
("it's mine, so I can do with it what I like").
But what happens if the Will causes nothing but harm to family
members? Should the right to full testamentary freedom be so
rigid if the effect of the Will is to leave a family destitute and
homeless?
To counteract the sometimes harsh reality of freedom of
testamentary expression, the Inheritance (Provision for Family and
Dependants) Act was passed in 1975. Under this legislation,
there are six categories of applicant who can apply if they feel
that they have not been adequately provided for in the Will.
They include:
- a spouse;
- a child of the deceased; and
- any person who was being maintained by the deceased.
Historically the scope of the Act has been very restrictive for
all but the spouse of the deceased. Indeed, up until now, an
able-bodied adult child in employment would have difficulty in
satisfying the court that he or she had any claim at all.
Ilott -v- Mitson and Others (2011)
The law in this area is set to be turned on its head in the
landmark ruling on 31 March 2011 in the case of Ilott -v- Mitson
and Others (2011). In this case, the deceased chose to
exclude her estranged daughter, Heather Ilott from her
Will.
The facts of the case were that Ms Ilott had moved out of the
deceased's home aged 17, requesting that the deceased contact her
no more. The deceased only saw her a few times in the many
years that followed and Ms Ilott never made any effort to reconcile
with her or encourage a relationship between the deceased and her
own five children. The deceased left a detailed letter of
wishes stating that her executors should defend any claim brought
against the estate by Ms Ilott on the basis that she had hardly
seen her over the years and that Ms Ilott was not at all
financially reliant on her. She had also told Ms Ilott that
she would not be inheriting anything from her estate. The
deceased left the bulk of her estate to charity.
Ms Ilott brought a claim under the Inheritance (Provision for
Family and Dependants) Act 1975 and she was awarded £50,000 by the
District Judge at first instance on the grounds that Ms Ilott had
five children and was living on benefits. Ms Ilott then
appealed for more money, but her appeal was dismissed and it was
decided that the District Judge's award of £50,000 was wrong and
that Ms Ilott should not receive a penny. Most recently Ms
Ilott has won the right to appeal to the Court of Appeal where it
is likely that she will succeed under the 1975 Act and will end up
being awarded far more than the £50,000 that was awarded at first
instance.
So does a parent ever really have full testamentary
freedom? Time will tell. The appeal will be heard later
in the year.
For further information visit our Wills and succession planning web page,
or contact our experienced Wills team by
calling 0800 652 2605.