Testamentary freedom has long been an established part of the English legal system. Unlike countries such as France and Spain which have forced inheritance rules, English law allows the testator freedom to leave his or her assets to anyone he or she wishes.
Or so we thought. Several recent legal cases seem to be eroding this principle.
The most recent of these is Nahajec v Fowle [2017] EW Misc 11 (CC). In this case, one of the estranged children of Stanley Nahajec successfully claimed £30,000 despite being estranged from her father for several years and despite his letter of wishes explicitly disinheriting her (and his two other children).
The claim was brought under the one statutory limitation in England on testamentary freedom: the Inheritance (Provision for Family and Dependants) Act 1975. This allows an eligible person who was omitted from a will, either deliberately or due to intestacy, to challenge the will and claim reasonable provision.
An earlier successful claim by another one of the children had resulted in Stephen Fowle, the sole beneficiary and executor of the will (who had since spent almost all the monies he inherited), having to take out a loan to pay off his newfound debt. Presumably he will now have to go into further debt. Who would be an executor?
Don’t believe that specifically excluding someone from your will means that he or she will not inherit. They may still do so. There are, however, ways to limit that possibility.
Your will is one of the most important documents that you will sign in your life; it needs to be thought through and drafted carefully. So ensure that it has been drafted by a professional and as they say on television: “Don’t try this at home.” It may not be worth the money saved.
We can of course help you here. BKL’s team of tax specialists includes Terry Jordan, whose expertise encompasses estate planning and will writing.
For more information, please get in touch with your usual BKL contact or use our enquiry form.
We also recommend our articles from earlier this month on the importance of wills, looking at issues of succession and laws of intestacy.
