The Right to be unfair?

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    This is for all the Society Members who have had clients who wanted to make exclusion clauses in their wills and not provide for a certain key family member for whatever reason the client may have. The advice to all members is that you need to remind the client of the constraints placed upon them and help the testator to ensure that this is achieved.

    This idea of “Testamentary freedom” is often cited as a fundamental tenet of English Law. We will see from the following this is not the case. Under English law we can, in draft, leave our estates to whoever we like or, to put it another way, you have the right to be unfair on paper.

    This means we can legally leave nothing to your nagging (or, indeed, lovely) spouse and your wayward, ungrateful (or, indeed, delightful) children. Better it go to charity or the mistress no one knew existed than to leave it to a room full of people you do not like at all. In truth however complete testamentary freedom was always a bit of a myth and never a realisable goal.

    It has long been established that testamentary freedom will not allow us to avoid providing for those who are dependent on us – our minor children, for example. A deliberate attempt to exclude such dependents would almost certainly lead to a claim against the estate under the Inheritance (Provision for Family and Dependents) Act 1975 for “reasonable financial provision”. And such claim will succeed. We can’t cut off our dependents (including those, like an exspouse, we are maintaining under a court order following divorce).

    Most claimants had, for some time, been required by the Courts to show some degree of financial dependence on the deceased in order to succeed. However, in the case of Ilott and Mitson and others [2011] , the Court of Appeal decided that what was “reasonable for the maintenance” of a hard-up adult only child estranged from her mother for years was not, in any way, linked to any financial dependence. The adult child could reasonably expect to receive a substantial lump sum from her mother’s estate, rather than see the whole estate go to charity (as per mother’s Will).

    However this is still to be determined as this case is being pushed up to the Supreme Court for appeal.

    This would lead us to conclude that fairness has thus triumphed over testamentary freedom and that we do not have the power to distribute our own assets as we would like.

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    Matt Walkden Will Writer

    About Matt Walkden

    I am a Professional Will Writer and I offer a small number of other products that complement my Will Writing such as Lasting Power of Attorneys (LPA’s), Fixed Price Estate Administration, often called Probate and some Property Products such as changing a family home from Joint owners to Tenants in Common.

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