Restrictions on Testamentary Freedom
| Author | Lesley King/Peter Gausden |
| Pages | 9-19 |
2.1 Introduction
In Chapter 1, we see that a testator can give away by will any property which is capable of being so given. It is also the case that a testator is generally free to make dispositions of property to whomever he pleases. Unlike the situation in some overseas jurisdictions, there are no forced heirship rights applicable to England and Wales which might otherwise compel a person to leave property to a particular person (see Chapter 9).
However, this so-called testamentary freedom is to some extent eroded, firstly, by statute and, secondly, but to a less frequent extent, by what the testator may have done through the giving of some sort of enforceable promise. This chapter considers in turn:
(a) Inheritance (Provision for Family and Dependants) Act 1975 (I(PFD)A 1975);
(b) mutual wills;
(c) contracts to leave property by will;
(d) proprietary estoppel.
Circumstances in which any of these may be relevant should ideally be identified when taking instructions for a will so that any limits on its terms might be known. However, this is only possible if the testator co-operates.
2.2 Inheritance (Provision for Family and Dependants) Act 1975
2.2.1 What the Inheritance (Provision for Family and Dependants) Act 1975 does
The I(PFD)A 1975 allows certain categories of people to apply for reasonable financial provision from the estate of a deceased who has died domiciled in England and Wales. They may be disappointed because they have been left out of a will or are not inheriting on intestacy, or they may
10 Wills: A Practical Guide
already have an entitlement under the will or intestacy but think they ought to have received more.
2.2.2 Time for making a claim
An applicant must apply to the court either before or no later than 6 months after the issue of the first effective grant of representation (see para 1.3.1) to the estate, although the court has a discretion to extend this time limit.
2.2.3 Those who can apply
The following can make a claim (section 1(1) of the I(PFD)A 1975):
(a) a spouse or civil partner of the deceased;
(b) a former spouse or civil partner of the deceased, but not one who has formed a subsequent marriage or civil partnership (often, the court granting the decree of divorce, dissolution or nullity will include a term barring the former spouse or civil partner from making a claim);
(c) any person who, during the whole of the period of 2 years ending immediately before the date when the deceased died, was living: (i) in the same household as the deceased; and (ii) as the husband, wife or civil partner of the deceased (in other words, a cohabitee). The parties must be living together as husband and wife or as civil partners in the sense that there is a commitment to permanence with such relationship being openly acknowledged and unequivocally displayed;
(d) a child (regardless of age or gender) of the deceased. This includes an illegitimate, adopted or legitimated child of the deceased and a child en ventre sa mère at the deceased’s death. A child who has been adopted cannot claim as a child of his natural parent;
(e) any person (not being a child of the deceased) treated by the deceased as a child of a family in which the deceased stood in a parental role (e.g. a step-child). A ‘family’ includes one where the deceased was the only member (apart from the applicant) and so includes a single parent family;
(f) any person (not otherwise included in the foregoing categories) who, immediately before the death, was being maintained by the deceased either wholly or in part. A person is ‘maintained’ if ‘the deceased, otherwise than for consideration pursuant to a commercial arrangement, was making a substantial contribution in money or money’s worth towards the reasonable needs of that person’ (section 1(3) of the I(PFD)A 1975). This would allow a claim by, for example, a
dependent relative or a secret lover, but not an employee, such as the deceased’s live-in nanny or carer, because any accommodation provided or money received from the deceased was by way of consideration paid under a commercial arrangement.
2.2.4 What the applicant must prove
The only ground for an application is that the disposition of the deceased’s estate effected by the will or intestacy, or a combination of both, is not such as to make reasonable financial provision for the applicant. There are two standards for judging reasonable financial provision:
(a) the surviving spouse/civil partner standard: this allows a surviving spouse or civil partner such financial provision as is reasonable in all the circumstances, whether or not required for maintenance (section 1(2)(a) of the I(PFD)A 1975); and
(b) the ordinary standard: this applies to all other categories of applicant and allows such financial provision as it would be reasonable in all the circumstances for the applicant to receive for his maintenance (section 1(2)(b) of the I(PFD)A 1975).
The word ‘maintenance’ in the ordinary standard has been held to connote only payments which, directly or indirectly, enable the applicant in the future to discharge the cost of his daily living at whatever standard of living is appropriate to him. Claimants who can provide for their own maintenance needs will not succeed. This is often a source of disappointment to adult children who feel that their parents have unfairly deprived them of an inheritance.
2.2.5 What the court takes into account
Statutory guidelines assist the court in determining whether the will and/or intestacy makes reasonable financial provision for the applicant. Some matters are common guidelines to be...
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