Is testamentary freedom in the UK slowly being eroded?
With the number of wills being challenged by adult children under the Inheritance (Provision for Family and Dependants) Act 1975 rising by a remarkable 20 per cent in the last decade, the court's ability to interfere with testamentary freedom is falling under increasing scrutiny.
The high-profile 2015 case of Ilott saw the Court of Appeal rule in favour of the daughter, Heather Ilott, who was granted £160,000 of her mother's, Melita Jackson's, estate, despite Jackson's will specifying that the entire estate was to be split between three animal charities.
Jackson had requested that her daughter should not benefit from her estate as she had left the family home to live with her boyfriend at the age of 17. However, the Court of Appeal awarded Ilott with one-third of the estate, concluding she was 'unreasonably' excluded by Jackson.
However, despite the Court of Appeal's ruling and the very natural, societal desire to see children or dependants adequately provided for, our primary concern as legal representatives should surely be to safeguard the written wishes of the deceased.
There is always a strong moral case to be heard where the court decides against the wishes of the deceased, particularly when the testator is no longer able to defend and protect their decision making.
Re Coventry [1984] was the first Court of Appeal decision made under the 1975 Act. In it Oliver J said (at first instance): 'It is not the purpose of the 1975 Act to provide legacies or rewards for meritorious conduct… an Englishman still remains at liberty at his death to dispose of his own property in whatever way he pleases …'
The basic premise that in the UK a citizen can leave their estate where they please is a key right, and it is important to look at this issue clearly and impartially, without allowing emotion or pity for children or dependants to cloud our view. It is our duty to do our utmost to protect the wishes of our clients and safeguard their final legacies.
Testamentary freedom is a well-established principle in England and Wales, but solicitors need to ensure that clients realise that their wills can and often will be contested. In order to make a robust last will and testament that can stand up to these claims, it is vital that clients are advised to take steps such as including a detailed letter of wishes, or even an explanatory sub-section in the will, explaining why they have omitted certain relatives and expectant, or aspiring beneficiaries. This action can often improve the chances of their inheritance reaching the intended beneficiaries as per the legacies contained in the will.
Although the Court of Appeal's ruling leaves many unanswered questions around the issue of rightful inheritance, what that ruling did achieve was to alert us all to the court's powers under the 1975 Act and fuel much-needed debate around the court's ability to interfere with testamentary freedom.
John-Paul Dennis is a partner and head of private client at Kirwans @KirwansLaw www.kirwanssolicitors.co.uk