Can we really do what we want in our wills?

Can we really do what we want in our wills.

‘Testamentary freedom’ or the ability to leave what you want, to who you want, has traditionally been viewed as a cornerstone of the British common law, guiding will writing in the UK.

The Inheritance (Provision for Family and Dependents) Act 1975, arguably runs counter to this position. By this act, a claim might be brought by family or dependents of the deceased should they feel themselves to have been unfairly treated by the will. This rule requires one making a will to make ‘reasonable’ provision.

Broadly, there are two recognised standards of ‘reasonableness’ applied: ‘The Surviving Spouse’ standard and the ‘Maintenance standard’.

The spousal standard applies to spouses/civil partners of the deceased and requires that the applicant receives: “such financial provision as it would be reasonable in all circumstances of the case of a husband or wife to receive, whether or not for his or her maintenance.” There are clear parallels to criteria applied in divorce proceedings.

The ‘maintenance standard’ broadly applies to all other applicants (including legally separated spouses). This standard requires: “such financial provision as it would be reasonable in all circumstances of the case for the applicant to receive for his maintenance.”

It is interesting to note that, whilst exclusion from a will often arises from a ‘falling out’ or estrangement between family members. Quality of relationship together with any moral obligation arising therefrom, appears largely absent from this standard.

The absence is perhaps starkest in cases brought by the estranged adult children of testators (those leaving wills). In the case of Oliver J in RE Coventry, for instance, the claimant was told (on appeal) that no need to demonstrate moral obligation existed (demonstration of financial need itself being key).

The situation is different where an existing dependence exists. In finding for the claimant, the judge presiding over Baynes v Hedger, noted that the deceased had effectively assumed responsibility of the maintenance of the claimant.

But is it enough that a claimant is able to provide for themselves? Until recently, this appeared to be the case. The point was made by judge Browne-Wilkinson that if a claimant “is physically capable of earning his [sic] own living …why should anybody else make provision for you?”.

More recently, however, (in the case of Ilott vs the blue cross and others), the notion that adult children might be treated as any other claimant was established. This case was won by claimant, largely on the basis of their own limited resources, and regardless of the more than two decade estrangement of parent from child. Cynics might think the ‘reasonableness of the request’ linked to the potential burden of the claimant on the state.

The risk of such claims should always be borne in mind by those making a will, a robust letter of wishes explaining reasons for exclusions may help but is no guarantee. Ultimately careful consideration should be given any potential claimants, and reasonable provision made where possible.

If you would like to discuss any of the issues raised with expert will writers feel free to get in touch via info@confidencewills.co.uk.