Heirs in UK Law

Subject to the court's powers under the Act and to fiscal demands, an Englishman still remains at liberty at his death to dispose of his own property in whatever way he pleases… In order to enable the court to interfere with and reform those dispositions it must, in my judgment, be shown not that the deceased acted unreasonably, but that looked at objectively, his … lack of disposition produces an unreasonable result in that it does not make any … provision for the applicant —and that means, in the case of an applicant other than a spouse for that applicant's maintenance."

An adult child is, consequently, in no different position from any other applicant who has to prove his case. If the applicant is of working age, with a job or capable of obtaining a job which would be available, the factors in favour of his claim for financial provision may not be of much weight in the scales. As Oliver J pointed out in re Coventry, necessitous circumstances cannot be in themselves the reason to alter the testator`s dispositions.

In the great majority of contested applications the court is involved in a balancing exercise among the many factors to which s.3 of the 1975 Act requires the court to have regard. Some factors may be neutral but many will go in the scales either in favour of or against the proposition that there has been a failure to make reasonable financial provision for the applicant. The word "special" means no more than what is needed to overcome the factors in the opposite scale.

Even so I do not think that in a case of this character an appellant can succeed in this court merely by showing (assuming that he can show) that this or that figure is erroneous, or this or that calculation is inaccurate. In what is essentially a jury question the over-all picture is what matters. It is the wood that has to be looked at, and not the individual trees.

What is proper maintenance must in all cases depend upon all the facts and circumstances of the particular case being considered at the time, but I think it is clear on the one hand that one must not put too limited a meaning on it; it does not mean just enough to enable a person to get by. On the other hand, it does not mean anything which may be regarded as reasonably desirable for his general benefit or welfare.

In an application under section 25 of the 1973 Act the court is directed, so far as it is practicable and is just to do so, to put the parties in the same financial position as they would have been if the marriage had not broken down. It is, however, obviously a very important consideration and one which the statute goes out of its way to bring to the court's attention.

A key feature of the concept of mutual wills is the irrevocability of the mutual intentions. The test must always be, 'Suppose that during the lifetime of the surviving testator the intended beneficiary did something which the survivor regarded as unpardonable, would he or she be free not to leave the combined estate to him?' The answer must be that the survivor is so entitled unless the testators agreed otherwise when they executed their wills.