Do we still have testamentary freedom?

In many of our blog articles, we look in detail at Inheritance Act claims which are one type of claim that may be made against an estate.

The Inheritance Act allows a limited number of individuals to bring a claim against a Deceased person’s estate for ‘reasonable financial provision’. These range from the person’s spouse to their children, cohabitees and those financially maintained by the Deceased before their death.

A great many claims are settled out of court so the official court statistics do not show the full scale of claims today. The number of caveats entered against estates (preventing probate from being issued while a dispute is dealt with) is more telling: over 8,000 were registered in 2017 alone.

Testamentary freedom – i.e. the right to leave our assets to whomever we choose – is often quoted as being a fundamental and enshrined principle of succession in England and Wales. However, with a rapidly growing number of disputes, you can be forgiven for wondering if it’s even worth making a Will at all. Does the principle still exist?

The answer is yes – absolutely. Despite the fact that the Courts will sometimes interfere with how an estate is distributed where they find good reason, a Will is still absolutely necessary. The number of disputed estates is still a very small fraction of the 616,014 annual UK deaths (2018, ONS). Further, without a Will, the outcome of intestacy rules is unlikely to be satisfactory for anyone; but especially where unmarried cohabitees or more complex family structures (such as those which include step children) are concerned.

Whilst a Will can be challenged, not all challenges succeed. Contrary to popular belief, there is no ‘right to inherit’ property from parents or relatives. For a claim to be successful, there must be some good reason for the Court to make an award beyond, for example, the mere fact of a blood relationship: “some reason why it can be said that, in the circumstances, it is unreasonable that no or no greater provision was in fact made.” (In re Coventry (1980) Ch 461).

Further, where claims do succeed, many result in a minority award from the estate, leaving the principle of testamentary freedom intact for the bulk of assets. Past awards have been around the 10% mark (although in a recent unsuccessful case, Deputy Master Linwood cautioned against treating such awards as a rule of thumb – every case is assessed on its own facts).

Further, where the Deceased did not make a Will or write a letter of wishes, a court faced with an Inheritance Act claim is unable to take their wishes into account at all. In the Ilott case (where a mother left her entire £486,000 estate to charity and her estranged daughter was successful in claiming just £50,000 of it), the absence of a Will would likely have assisted the daughter’s claim and undermined the mother’s true intentions even further.

Wills can be used to ensure your entire estate is not eaten up by care fees or creditors. They can also ensure your hard earned cash does not pass sideways out of the family – a scenario that is not uncommon where a spouse remarries after the first death, or where a beneficiary divorces or falls into debt. In addition, they can create tax efficient trusts for minors and specify guardianship.

Further, Wills can cover matters such as charitable gifts, the gift of and upkeep for pets and funeral wishes. Although funeral wishes are not legally binding, it can be a great comfort for loved ones to know what you would have wanted.

However, given the rapid increase in claims against estates, Will writing lawyers need to have a detailed understanding of Inheritance Act decisions and other types of probate claims. This is where the choice of Will writer becomes so important.

Steve Lodge and Sam McFaul at Money Saving Expert say:

“Confusingly, while will-writing itself is unregulated, because solicitors ARE regulated professionals, if you use them you ARE covered by a range of potentially valuable protections. With other (non-lawyer) will-writing services, you do NOT have the same safeguards, and with a DIY will essentially you are on your own. So we want to make it clear that who writes your will matters: the protections can vary hugely and  problems may not come to light until after you are dead, which could be many years later.”

April King’s team of Solicitors, CILEX members and Trusts and Estates specialists is led by Paul King, a STEP-qualified Trusts and Estates Practitioner (TEP). They have an in-depth understanding of both best Will writing practice and how best to avoid the likelihood of your wishes being challenged. Whether you want to make a simple Will or you are considering leaving out relatives who might otherwise expect to be included, we are in an excellent position to advise you. Find out more about making a Will here, or learn more about contesting a Will here.

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