The Pursuit of Testamentary Freedom

It may well come as a surprise to many that their choice of who will and will not benefit from their estate is not sacrosanct or set in stone.  It is likely that most people who make a Will in the UK believe that their testamentary wishes will be carried out on their death.

The law surrounding Wills and succession is, however, more complex and nuanced than this. 

Although the starting point is testamentary freedom, there is the Inheritance (Provision for Family and Dependents Act 1975) (The 1975 Act) which sets out certain people who are able to make a claim on an estate.

The 1975 Act permits any child of the deceased to make a claim on their parents’ estate on the grounds that the deceased’s Will has not made reasonable financial provision for them.

The 1975 Act defines reasonable financial provision for all applicants other than a spouse or civil partner as ‘such financial provision as it would be reasonable in all circumstances of the case for the applicant to receive for his maintenance’.

It is clear, therefore, that the purpose of The 1975 Act is to create a moral obligation to provide for surviving family members and dependents.

This principle is demonstrated in the high profile case of Ilott v Mitson which saw the daughter of the deceased fiercely contest the testamentary wishes of her mother. 

This case went all the way to the Supreme Court.  In 2017 the Supreme Court awarded the daughter £50,000 from her mother’s estate. 

Her mother had, in fact, deliberately excluded her daughter from her Will and prepared statements to sit alongside the Will explaining the reasons why. 

As stated above, this may come as a surprise to many and this surprise is certainly demonstrated by the press’ response to some of the Court’s decisions in respect of this case. 

For example the Daily Mail ran an article in 2015 entitled ‘Who are judges to tell us who we can leave our money to in our Wills’. 

The concept of testamentary freedom does underpin the law of succession in England and Wales. Real testamentary freedom, however, it could be argued has not existed in England for nearly one hundred years. 

The issue of testamentary freedom and The 1975 Act is of great importance to anybody who is wishing to make an unequal distribution of their estate.  This is particularly relevant if an individual has a significant estate and owns certain valuable assets and interests which they wish to leave to a particular child to the exclusion of others.

For example, a person may own a valuable business which they wish to leave to a particular child.  It may make perfect sense and seem reasonable to the business owner that they wish to leave their business to a particular child who, for example, works within the business with them already or has shown significant interest in the future running of the business. 

Such a legacy, however, may lead to discord within the family and litigation in respect of the estate. Such a situation would be to the detriment of the family and the business itself. 

Litigation in respect of estates under The 1975 Act is becoming increasingly common as individuals become more aware of their legal rights and potential claims they may have on estates. 

It could be argued that the higher the value of the estate the more likely a potential claim is to be made. This is because a significant estate would be viewed as appealing to a potential applicant. 

If you are considering an unequal distribution of your estate or even excluding a person who would expect to benefit from your estate entirely then you should seek expert legal advice.

The Private Wealth Sector team has the expertise and experience to advise individuals with significant estates on these matters and how best to prepare your Will and ancillary documentation.