InsightsInsight - Wills and Probate - POSTED: June 7 2017
What is ‘Testamentary Freedom’?
Back in 1870, Mr Justice Cockburn declared “the English law leaves everything to the unfettered discretion of the testator,” by which he meant that a testator is free to leave their worldly goods to whoever they like by their will – free from the sort of state interference which would otherwise force wealth to be passed through the bloodline to children on death, as was (and still is) the case, in other jurisdictions, such as France and Spain.
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He was delivering judgment in the case of Banks -v- Goodfellow, which concerned a testator who had suffered from ‘delusions’, but not the sort of delusions sufficient, in Mr Justice Cockburn’s view, to affect capacity or influence the testators decisions about who would, and who would not benefit from his estate on his death.
Fast forward to 2017 and things have changed; the concept of testamentary freedom, whilst still a principle of English law, and favoured by public opinion (according to various surveys) appears, on the face of it at least, to have taken something of a battering. Firstly, in 1938, legislation was introduced which gave certain categories of person the right to make claims on estates for their maintenance (irrespective of what a will or intestacy says), and secondly, by a succession of decisions made by the courts when called upon to effectively enforce promises testators had made about who would benefit from their estates on their death. It may surprise some that the sorts of promises enforced in this way were not necessarily understood by the recipient to have been legally binding. Neither were the promises or assurances always clear and unambiguous in the usual sense, but rather ‘clear enough’ and ‘hugely dependent on context’. In the case of one illiterate farmer testator, simply telling someone where the deeds to the farm were located, handing over a bonus note and saying ‘this is for my death duties,’ was enough – although it has to be said, that case was extraordinary and, as with many disputes about estates, very much turned on its facts.
In 1975, the original 1930’s legislation enabling certain categories of person to make claims on estates was expanded further, in that a spouse who was seeking financial provision from an estate was no longer restricted to seeking only that level of provision required for their maintenance. By the 1970s, the divorce courts were recognising contributions of a non-financial nature made by one party to a marriage (most commonly the wife) such as giving up work to raise children, to be equally as important. As such, it was no longer considered appropriate for that party to leave the marriage with only the bare essentials of maintenance. Orders were, therefore, being made on divorce to reflect this, sometimes by dividing the matrimonial assets in two. So, when it came to a spouse seeking financial provision from an estate, it followed that any failure to catch up with the thinking of the divorce courts by removing the maintenance level restriction on claims could well have left a spouse in a worse financial position if the marriage had ended in death, rather than divorce. The result of the 1975 change is that, of the categories of claimant specified in the legislation as able to bring a claim for financial provision from an estate, a spouse is likely to have a good claim to a large chunk of it, and this can put them in conflict with the testators’ children where the testator had wanted to pass wealth down the bloodline. This is especially the case where the surviving spouse is not also the parent of the testators children, which may be a common scenario these days, but not so common in Mr Justice Cockburns’ day.
And then there is the unmarried or widowed testator who has fallen out with their children and is clear that those children are not, under any circumstances, to benefit from their will. How free is a testator to make this happen? Not that free it would seem. A case with these facts hit the headlines earlier this year when the Supreme Court looked at a claim made by a daughter who had been estranged from her testator mother for 25 plus years, in circumstances where the mother had been very clear that she did not want the daughter to benefit from their estate. The will provided for a number of animal charities instead and was accompanied by a letter explaining how much she disproved of her daughters’ life choices. Despite this,13 years after the mothers’ death (and after a great deal of time-consuming expensive litigation too) the daughter ended up with just over 10% of the mother’s estate anyway.
So where is the concept of testamentary freedom now at, and what can be done to maximise the prospect of enjoying this particular freedom?
Firstly, it should be remembered that testamentary freedom is still the starting point and unlike the jurisdictions of say France or Spain, it is only threatened when someone goes to the trouble and expense of bringing a claim. The likelihood of a claim being brought can be minimised too if advice is sought about the circumstances which may give rise to a claim when the will is made in the first place. And a word to the wise – avoid promising someone you will leave them your estate in your will.
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