A Modern Look At Testamentary Freedom

In England and Wales, we are lucky enough to have testamentary freedom to leave our property to whom we want.

The Supreme Court recently considered testamentary freedom in the context of the Inheritance (Provision for Family and Dependants) Act 1975 in the well reported case of Illot v Mitson.

The Inheritance (Provision for Family and Dependants) Act 1975 is a statutory provision where certain classes of people, such as spouses, children or dependents, can bring claims on an estate where they have not been provided for in the Will of the deceased with reasonable financial provision.

Here, the now deceased mother, Mrs Jackson, had exercised her discretion and cut her estranged daughter out of her will. The mother and daughter, Mrs Illot, had fallen out when she ran away when 17. They had lived financially independent of each other for some 26 years with Mrs Illot claiming state benefits to support herself. Mrs Illot found out after her mother’s death that she was not a beneficiary under her mother’s will and as such brought a 1975 Act Claim. Mrs Jackson had left two side letters or letters of wishes with her will explaining why she had cut her daughter out and asking her executors to defend any claim on her estate.

The Supreme Court clarified much in this area of law but also spoke about testamentary freedom. The burden is not on the Defendant to justify their provision under the Will, it is for the Claimant to establish his or her claim for reasonable financial provision. As such, this places greater emphasis has been placed on the testator’s wishes as the Defendant has to justify why they should receive the benefit, clearing up a grey area of this part of law.

Frances Boxall is a trainee at Hammersmith law firm Hubbard Pegman and Whitney (HPW) currently working in the contentious probate and litigation department.