THE ENGLISHWOMAN'S CASTLE—INHERITANCE AND PRIVATE PROPERTY TODAY
| Published date | 01 March 1988 |
| Author | Kate Green |
| DOI | http://doi.org/10.1111/j.1468-2230.1988.tb01751.x |
| Date | 01 March 1988 |
THE ENGLISHWOMAN’S CASTLE-
INHERITANCE AND PRIVATE PROPERTY
TODAY
THE
enjoyment of private property is tainted by the awareness that
at death you cannot take it with you; however, the pain
of
leaving
it behind is assuaged by the knowledge that the disposition that
you make lives after you. It is nowadays assumed that-other than
as regards the taxwoman’s share-“the dead hand,” whether by
will or by the choice
of
a convenient intestacy, and whether rich or
poor, will be facilitated and not obstructed by the law. Any change
in the state’s involvement in the disposition of private property is
therefore bound to be
of
“considerable social interest” involving
the “broadest issue” of the “social and ethical validity of inheritance
itself.”’ This is because private property, including the right to
determine who should inherit it, is a fundamental tenet of prevailing
liberal philosophy-as neatly expressed in the common saying, “An
Englishwoman’s home is her castle.”
The aim of this article is to examine the working of the
1975
Inheritance (Provision for Family and Dependants) Act and to
assess whether liberalism provides an adequate ideological basis for
this law. Before analysing the background of the present legislation
and what is actually happening in the case-law, especially in respect
of applications by “dependants,” it is necessary-very briefly-to
explain the basic tenets, and some of the problems, of classical
liberalism.
1
PRIVATE PROPERTY
AND
THE
PRIVATE
FAMILY
The law here is concerned with the application by a person who
believes that in some way the deceased’s estate should not be
disposed
of
according to the will or to the rules
of
intestacy,
whichever is appropriate. Family provision legislation must resolve
the claims
of
the testator to have her final wishes enforced,
of
the
heir who may be deprived
of
her expectation, indeed effectively
expropriated, and
of
the applicant who has some moral claim to
the estate.2 This triangle-testator versus heir versus moral
claimant-poses very difficult problems for a legal system which
claims to respect the sanctity of private property.
However, more than “property” is at issue in these cases. The
jurisdiction of provision for family and dependants at death
threatens not only freedom of testation-one of the main
characteristics of property-but also the institution
of
the family.
In classical liberalism both property and the family lie in the
J.
Gold,
“Freedom
of
Testation”
(1938)
4
M.L.R.
296.
Gold,
n.1,
discusses some aspects
of
this.
187
188
THE
MODERN
LAW REVIEW
[Vol. 51
“private” domain, where state and law should not enter: “in brief
or crude terms
.
. .
not the law’s busines~.”~
Mnookin explains that “public” and “private” can be seen as
labels for “clusters of activities” which draw the boundaries for
state action:
“The liberal social world evinces a strong tendency to split
itself into two distinct parts
.
.
.
And from this split it draws a
multitude of consequences for action
. .
.
The labels have
important normative
consequence^."^
The liberal justification of the public-private divide is that
maximising the individual’s freedom of action is necessary not only
to ensure respect for the personal dignity of each human being but
also provides the best chance in life for everyone and the best kind
of society. From John Locke’s cry for the God-given right of
property against the arbitrary monarch of the seventeenth century,
to Bentham’s nineteenth century Utilitarian justification of property
as a legal institution necessary for “the greatest happiness” and
Hayek’s twentieth century claim that state intervention necessitates
coercion, liberal philosophers have argued that liberty is only
possible if state and law are kept to the minimum. Therefore, the
law must not “interfere” in the “private”-but it must be pointed
out that “‘interference’ is not a simple description of state action or
inaction, but rather a way of condemning particular state policies,
usually those aimed at changing the status For liberals, the
law’s only business is the “public” domain, where individual
freedom is not threatened.
In practice, liberalism does admit of state intervention in the
private in certain circumstances:
“The only purpose for which power can rightfully be exercised
over any member of a civilised society against his will is to
prevent harm to others
.
.
.
He cannot be compelled to do or
forbear
. .
.
because in the opinion of others it would be wise
or even right.”‘
If this is the only justification of interference by the state in the
life of the individual, then the problem of liberalism becomes to
determine what is meant by “harm to others.” As will be seen, this
is a difficult issue when it comes to re-writing wills.
Although in classical liberalism the family and the market both
lie in the private sphere and share the characteristic of “no state
interference,” these two institutions have come to represent
Wolfenden Report on Homosexuality and Prostitution, Cmnd. 247 (1957) para. 61.
See too here
S.
I.
Benn
&
G.
F. Gaus,
Public
and
Private
in
Social
Life,
(1983); they
point out that
it
is not possible to give
a
coherent account
of
all aspects of public and
private in liberal theory (at p.58).
R. H. Mnookin, “The Public-Private Dichotomy; Political Disagreement and
Academic Repudiation,” 130 U.Pa.L.Rev. 1429 (1982) at p.1521.
J.
S.
Mill, “On Liberty” in Marshall Cohen (ed.)
(NY:
Random House) 1961 at
p.197.
’
F. Olsen, “Family and Market”, 96 Harv.L.Rev. 1497 (1983) at p.1506.
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