The Inheritance Provisions – An Affront to Testamentary Freedom?

By Ben Lafferty LL.B., Queen’s University Belfast

This brief research piece will gauge the extent of the author’s agreement with the statement that;

“Testamentary freedom is often regarded as the ‘first principle of the law of wills’. However, will-makers should not be lulled into a false sense of security; successful family provision claims can undo the terms of a validly executed will, even when the will-maker’s intentions are very clear”[1]

Overall, my agreement with the statement that a will-maker should not have a “false sense of security” in believing that their intended bequests will be upheld, depends upon which category of claimant attempts to challenge the will. To display this, I will assess the most litigious sections of the provision. It should also be noted, at this preliminary stage, that I will primarily utilise the English provision, given that the vast majority of cases to which I refer are English, although, the Northern Irish order is an exact equivalent. Beginning with adult children claimants, I will display my agreement with the sentiment in the statement that the act presents a threat to testamentary freedom. To develop this argument, I will convey that the test for adult children, based on moral obligation, displays a fixation with rewarding praiseworthy action rather than respect for testamentary intention. From here I will then assess a counter to this which holds that the requirement of a moral obligation has been removed from later case law. However, I will display that upon a proper reading of case law the moral obligation test is still central. I will then assess the purported view that Ilott v Mitson[2] has generated renewed focus upon testamentary intent in claims by adult children. This will be refuted. Moving next to claims under the provisions by cohabitants, I will again display that this is another area in which I fully agree with the statement due to the fact that the courts have enhanced the size of provision available under this section and hence further impugned testamentary freedom. Lastly, I will analyse claims by those being maintained by the deceased to display that my agreement with the statement is only partial for such claimants given that the courts have moved to restrain standing in this area which will limit the availability of a claim, thus protecting testamentary intention, whist at the same time they take a relaxed approach to assessing substantial contribution.

Section A) Categories which Disregard Testamentary Freedom:

I) Adult Children as Claimants:

Under s 1 (1) (c) of the Inheritance (Provision for Family and Dependants) Act 1975[3], any child of the deceased can make a claim that their deceased parent failed to make reasonable financial provision for them in their will, and the courts will assess this under the criteria found in s 3(1) of the act. Here it will be argued the test which has been generated for independent children to establish on the facts that reasonable financial provision had not been made for them, through focusing on the concept of morality, displays that the court is not concerned with what the will-maker wished to do with their property, but rather with rewarding meritorious conduct.[4] Consequently, with regard to claims by adult children, I agree with the statement’s view that a would-be will-maker should be under no belief that their bequests will be respected, as if the court deems the behaviour of their children to be of a certain moral standard their intentions will be pushed to the wayside. The courts have always recognised that for an independent adult child to receive an award under the Inheritance order the claim must exhibit an additional something that can push it over the finish line, indeed the reason behind this can be found in the dicta of Browne Wilkinson J who states that if a person is “is physically capable of earning his [sic] own living …why should anybody else make provision for you?”.[5] In finding the “something extra”, which can enable a finding that an independent adult child has not had reasonable financial provision from a parental will, the courts have turned to the notion of moral obligation, stemming from their analysis of s 3 (1) (d) of the 1975 Act which requires the court to take account of any obligations the deceased had towards the applicant. The establishment of the requirement of a moral obligation is attributed to the oft cited dictum of Oliver J in Re Coventry[6] which proclaimed that “there must…be established some sort of moral claim by the applicant”[7] in order to prove that they have not been reasonably provided for in the will. This focus on a moral obligation can be seen to be a continuity of approach by the judiciary towards the issue of inheritance challenges from the 1938 act,[8] as displayed by the remarkable similarity between the Oliver J decision noted above, and the decision of Wynn-Pay J in Re Andrews (Deceased)[9] which noted that the “most important factor”[10] to consider was the “extent to which…the testator was under a moral obligation”[11] to the claimant. The importance of a moral nexus to ensuring a successful finding that a will did not make reasonable financial provision for an adult child has been noted also by several academic scholars, such as Gillian Douglas who highlights that the search for a moral nexus centres on the courts searching to discover whether the claimant had shown they “fulfilled the obligation of a child to show concern for a parent”[12], evidenced through caring for elderly parents, and Simon Douglas who even goes as far as to say that the “one type of case where adult children had tended to succeed under the 1975 act”[13] is one in which the adult child was shown to have cared for the deceased parent. Hence, with regard to adult children bringing claims under the 1975 act, I would agree with the statement’s position that “will-makers should not be lulled into a false sense of security” that their intentions will be respected as, when an adult child makes a claim that a will has not made reasonable financial provision for them, the central focus for the court is not the content of these intentions but rather whether there exists some form of moral conduct; which conveys the attempt to provide reward for “highly commendable”[14] behaviour rather than to respect testamentary intention.

                                                However, in contravention to the above argument it has been put that the role of morality as a determining factor in a claim by an adult child cannot be used as a basis upon which to display that the courts are preoccupied with rewarding laudable behaviour, as opposed to focusing on a will-makers intention, as the use of morality as a tool for deciding said cases is far from stable; given that the case law has displayed “little continuity in terms of legal principle”.[15] Such a contention clearly presents massive issues for the argument I have fielded above, by disputing the role of morality, and thus challenges my agreement with the statement, given that, as I had pointed out that morality formed the basis of my agreement with regard to adult children, if moral obligation can be shown to be unnecessary it is surely flawed to base an argument upon it. Indeed, if one looks upon the case law in a narrow light it could be construed that moral obligation has, to an extent, faced partial judicial disfavour.[16] For example, in the Court of appeal decision in Re Coventry[17] where Goff L.J. noted that, with regard to Oliver J’s quotation noted above on moral obligation, “Oliver J nowhere said that a moral obligation was a prerequisite”[18] of a claim by an adult child.  Similarly, through a limited reading of the decision of Butler-Sloss LJ in Re Hancock,[19] the purported departure with the need for moral obligation can be noticed when the learned judge states “it is clear to me that the 1975 act does not require, in an application under s 1 (1) (3), that an adult child has in all cases to show moral obligation”.[20] Thus, clearly such quotation would appear to undermine the presence of the moral obligation, and in consequence the validity of my above argument. However, it can be shown that in subsequent case law the purported retreat from moral obligation has been reversed, as displayed by, following the Court of Appeal decision in Re Coventry, the position taken in Re Jennings[21] which stated that “it was established by the decision of Oliver J…that, on an application by an adult son of the deceased who is able to earn…his own living there must be some…moral obligation.”[22] Similarly, in Espinosa v Bourke[23] the court reemphasised the importance of moral obligation in proving reasonable financial provision had not been made highlighting that “the most weighty factor[s] to be put on the scales in favour of the applicant”[24] were the moral obligations the deceased father had towards his daughter arising from a promise the deceased made to his wife that he would look after the daughter[25], and the fact that “the appellant had taken her father into her house and cared for him.”[26] Additionally, the ingrained nature of the morality test further apparent in academic opinion, displayed through a 2005 Wilson and Bailey-Harris article[27], which argues that the test is all too present and should discarded given that it pays no adherence to the wishes of the testator. Consequently, this analysation of the case law displays that, despite an extent of judicial distaste towards the moral obligation requirement, the courts have, in later case law, reverted back to placing central focus on the moral nexus. This then dispels the critique to my above argument by showing that moral obligation is clearly central to an adult child’s claim, thus, reaffirming that it is on grounds of morality that the courts assess such claims, not grounds which aim to protect testamentary intention.

                                                                                Furthermore, my agreement, for claims brought by adult children, with the statement’s holding that a will-maker should not believe that their intentions will be upheld, is not impacted by the recent decision of the Supreme Court in Ilott v Mitson. It has been argued that the supreme court “bolstered the principle of testamentary freedom”,[28] given that Lord Hughes stated that, in regard to claims by adult children, it is not the case that once there is a qualified claimant and a demonstrated need to maintain them that “the testator’s wishes cease to be of any weight”.[29] Similarly it is argued that through the court adopting a narrow perception of what may be termed maintenance under s 1 (2) (b) of the 1975 act, in stating that it will only cover “provision to meet the everyday expenses of living”[30], has protected the testators intention through ensuring that any award given out of an estate will be small, thus diminishing the impact of the award in respect to original intent of the will-maker.[31] However, despite this, any purported respect for testamentary freedom contained within Mitson is clearly superficial. This is evident given that the testator explicitly highlighted that she did not want her only daughter to benefit from her estate, thus displaying that the award, however big or small, ran counter to those intentions.[32] Hence, given this superficial consideration of testamentary intentions in Mitson, the decision leaves unchanged my agreement with the statement’s notion that a will-maker’s intention should not be regarded by the will-makers as irrevocable.

II) Cohabitants as claimants:

A cohabitant can, by virtue of s 1 (1) (ba) contend that a will did not make reasonable financial provision for them. This category of claimant is one in which I again agree with the statement in relation to the sentiment that a will-maker’s intent means little in the face of the 1975 act. I agree with the statement, in relation to cohabitants, as the courts have been too generous when determining what award should be given to a successful cohabitant claimant; despite the fact that the 1975 act restricts any award to what is reasonable for the applicant’s maintenance under s 1 (2) (b). by expanding the level of award the court is willing to give a cohabitant, beyond that which the legislation indicates, the courts leave a testator in a position of uncertainty as just how far a claim under the 1975 act will encroach the will-maker’s intended bequests, thus reinforcing the statement’s claim that will makers should have no “false security” that their intentions will be respected. The inflated nature of the awards is presented through Musa v Holliday[33] which saw a claim by a cohabitant who had lived with the deceased for seven years and had a child with him.[34] The deceased died intestate and his cohabiting partner made a claim that reasonable financial provision was not made for her. She received a substantial award, which included the home she and the deceased had shared, even though it was recognised that this was “probably a larger property than absolutely essential,”[35] and she also received the deceased’s shares in the family cemetery business (which had a minimum valuation of £700,000).[36] This substantial award clearly displays that, with regard to cohabitants, the courts are liberal with their notion of maintenance. This is evidenced not only through the fact that, as noted above, the court recognised that the award it was making was beyond what was absolutely essential, but also through the sensational assessment of the claimant’s needs by the court which included a reliable vehicle which reflected her lifestyle, holidays abroad once a year, the ability to entertain friends, and the ability to dress to a reasonable standard.[37] Due to this clear stray beyond mere maintenance, it has been commented that “in some circumstances cohabitants can expect to be in as good a position as a spouse”[38] and that this is can be explained through the court recognising the growth of cohabiting in society.[39] The argument that the courts in some instances treat a cohabitant as favourably as a spouse is an appealing one when one contrasts the ruling for Musa with the decision from Lilleyman v Lilleyman.[40] In Musa a cohabitant was given access to deceased share of a family business, whereas in Lilleyman, the claimant was denied access to shares in a family business, even though a half of the growth of the business across the period of the marriage was found to fall within matrimonial property,[41] on the grounds that it was unfair to share a family business with a spouse who had only been married for slightly over 2 years to the deceased.[42]  Thus, it is clear that the courts have strayed beyond assessment of claims for cohabitants based only on providing for them what is reasonable as maintenance, as the legislation dictates, by pushing claims closer to the perception of what is reasonable in all the circumstances per s 1 (2) (a) to treat a cohabitant more like a spouse, and in some cases arguably better than certain spousal claims. This reality is the basis of why I agree with the statement, on claims by cohabitants, given that by awarding greater amounts than the legislation dictates is possible the courts induce greater uncertainty as to the level of award they will grant a claimant, and in doing should leave the will-maker with even less hope that their intentions will be respected.

                                Admittedly, it could be argued that it is dangerous to draw an inference of a general trend from Musa given that it displays a number of factors that could point towards it being an exception to any rule; rather than the rule itself. These include the fact that firstly the estate was extremely large, secondly that there were issues of ambiguous tax liabilities on the company thus meaning that to be safe the courts had to lean towards a maximum award[43], and the need for a clean break as there was evidence that one of the relatives of the will had to procure the murder of the claimant.[44] However, despite this, a trend can be found given the case of Negus v Bahouse,[45] in which the claimant had cohabited with a wealthy man for 7 years before his death. In this case the courts defined maintenance as provision which matches “her lifestyle as it way with him, not as it was immediately before” which portrays an expansion in the notion of maintenance given that the court is not seeking to simply maintain the claimant, but rather conserve her now luxurious life style which was “an undoubted improvement on her lifestyle before”[46] by affording her “financial security and a degree of comfort for the rest of her life”. [47]Thus, the argument above can be safely founded on Musa, as this case analysis displays that a general trend of expansion in maintenance for cohabitants exists elsewhere from that case.

Section B) Areas which display more Promise for Testamentary Freedom:

I) Person Being maintained by the deceased:

Claims brought under s 1 (1) (e) have been described as the section which “most clearly raise[s] the issue of freedom of testation”[48] given that it is the only section which steps beyond immediate personal relationships (such as family or partner). Unlike the last two areas analysed, my agreement with the statement here is more partial than concrete. This partial position comes through the fact that the courts have both demonstrated action which shows respect for testamentary freedom, by enabling a restrictive approach to standing, and action which has the effect of expanding standing. Thus, given that the two have occurred simultaneously, my agreement with the statement is only partial for this category.

                                Evidence of the courts protecting testamentary freedom, and hence disproving the statement which places emphasis on how the 1975 act can infringe testamentary freedom, is presented through how the courts have renewed emphasis on the requirement of assumption of responsibility, under s 3 (4) (b) of the 1975 act, in the Court of Appeal’s decision in Baynes v Hedger[49] where it was stated that a demonstration that the deceased had assumed responsibility for the claimant’s maintenance “is a necessary ingredient of a person entitled to claim un s 1 (1) (e).[50] Such requirements for standing will greatly limit the usage of this classification of claimant given that in day-to-day personal relations it may be hard to delineate what actually stands as an example of assumption of responsibility, especially because “it is highly unlikely that any formal arrangements will have been made”[51] between the deceased and the person claiming under the section. Thus, as regards the idea of assumption of responsibility, the courts have developed a high-bar to standing which will actively constrain the operation of this section thus meaning, in contrast to the opinion contained in the statement, the 1975 act presents little threat to testamentary intention. It should be noted that the courts had not always placed assumption of responsibility as key to establishing standing,[52] as in Jelley v Iliffe[53] it was stated that the “bare fact of maintenance…raises…presumption that responsibility for it has been assumed.”[54] This had the effect of subverting the assessment of assumption of responsibility in relation to standing, as displayed through the fact that in Bouette v Rose[55] in which it was noted that the court was unsure as to the role that assumption of responsibility played in relation to standing, given that it can be assumed from fact of maintained based on Jelley. This is also displayed by the High Court decision in Baynes v Hedger[56], in which assumption of responsibility was not used to determine standing. This, thus displays that the courts have undertaken a newly restrictive approach to establishing standing under the assumption of responsibility which will restrain the usage of this section, and consequently protect testamentary freedom, contrary to the content of the statement.

                                                In contrast to the above, under the assessment for standing dictated in s 1 (3) of the 1975 Act which holds that an applicant must show that they were being maintained to such a level that the deceased “was making a substantial contribution in money or money’s worth towards the reasonable needs of that person”, the courts have had a more relaxed approach. This more relaxed approach may thus threaten to widen the availability of the section and thus increase the threat it poses to testamentary freedom, thus reaffirming the statement. This is displayed through the courts embarking on their balancing exercise to see how the contributions of the two parties compare. In Bishop v Plumley[57] the Court of Appeal, in conducting its balancing exercise to examine the requirement of s 1 (3), only looked for an “imbalance”[58] in terms of the difference in contributions between the deceased and the claimant, and they were willing to ignore the care the claimant gave the deceased which was “out of the ordinary…and exceptional”[59] in deciding that the deceased’s contributions had outweighed the claimant’s. Thus, under s 1 (3) the courts have a more relaxed approach and will find that substantial contribution has been made to the claimant even when the claimant has provided considerable service towards the deceased.

                                Thus, with regards to claims made by those claiming to be maintained by the deceased I only partially agree with the sentiment in the statement that the act presents a threat to testamentary freedom, as under this section the courts have shown both restrictive and more relaxed tests for standing to be established, thus meaning that the category is partially closed yet partially open, which in turn slightly reduces its impact as a threat to will-maker’s intent.

Conclusion:

In Conclusion, I entirely agree with the statement, referenced at the beginning of this article, in relation to both claims by adult children and claims by cohabitants. I have displayed how both of these represent a strong threat to testamentary freedom through, in the case of cohabitants, overly generous awards, and, in the case of adult children, a test which pays no attention to the intentions of the will-maker. Lastly, with regard to claims emerging from those asserting to have been maintained by the deceased, this piece argues the author’s qualified, partial agreement with the statement – through a display of the courts taking a much less clear-cut approach towards the total disregard of the notion of testamentary freedom for this category of claimant.

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[1] Prof Rosalind Croucher “A Lament for Family Provision – Good Idea Gone Wrong? Australian Reflections”, Colloquium on 40 Years of the PRA: Reflection and Reform.

[2] [2017] UKSC 19; [2017] 2 W.L.R 979.

[3] Herein the “1975 Act.”

[4] Sheena Grattan Succession Law in Northern Ireland (Belfast, SLS Legal Publications, 1996) 198.

[5] Re Dennis [1981] 2 All ER 140, 145.

[6] [1979] 2 WLR 853.

[7] Ibid, 865.

[8] Andrew Borowski “Re Hancock (Deceased) and Espinosa v Bourke: Moral obligation and family provision” (1999) 11 Child and Family Law Quarterly 305, 306.

[9] [1955] 1 WLR 1105.

[10] Ibid, 1106.

[11] Ibid.

[12] Gillian Douglas “Family Provision and Family Practices – The Discretionary Regime of the Inheritance Act of England and Wales” (2014) 4 Ōnati Socio-legal series 222, 241.

[13] Simon Douglas “Estranged Children and their Inheritance” (2016) 132 LQR 20, 24.

[14] Grattan (n3).

[15] Heather Conway “Do Parents Always Know Best? Posthumous Provision and Adult Children” (2015) 8 Modern Studies in Property Law 117, 121.

[16] Borowski (n7) 305.

[17] [1980] Ch 461.

[18] Ibid 487.

[19] [1998] 2 FLR 346.

[20] Ibid 351.

[21] [1994] ch 286.  

[22] Ibid 295, Nourse LJ.

[23] [1999] 1 FLR 747.

[24] Ibid 757.

[25] Espinosa (n22) 756.

[26] Ibid 757.

[27] John Wilson and Rebecca Bailey-Harris “Family Provision: The Adult Child and Moral Obligation” (2005) 35 Fam Law 555, 558.

[28] Gwyn Evans “You’re no son (or daughter) of mine! The inheritance act – a charter for ‘spend thrifts and wastrels’?” (2017) Dec Fam Law 1346, 1352.

[29] Mitson (n1), [47].

[30] Ibid [14].

[31] Brian Sloan “Testamentary Freedom Reaffirmed in the Supreme Court” (2017) 76 CLJ 499, 500.

[32] Steve Evans “Drafting Matters Post-Ilott” (2017) 167 NLJ 15.

[33] [2012] EWCA Civ 1268.

[34] Ibid, [2].

[35] Musa (n32) [14].

[36] Ibid [23].

[37] Musa (n32) [16].

[38] Ruth Hughes “Spouse and Cohabitee Claimants Under the 1975 Act: Meeting in the Middle” (2013) 43 Fam Law 826.

[39] Gillian Douglas “Family Provision: Lindop v Agus, Bass and Hedley [2009] EWHC B 14 (CH)” (2009) 39 Family law 808, 809.

[40] [2012] EWHC 821 (ch).

[41] Ibid [78].

[42] Lilleyman (n39) [88].

[43] Musa (n32) [29].

[44] Ibid [21].

[45] [2007] EWHC 2628 (ch).

[46] Ibid [68].

[47] Negus (n42) [87].

[48] Kate Green “The English Woman’s Castle – Inheritance and Private Property Today” (1988) 51 MLR 187, 196.

[49][2009] EWCA Civ 374.

[50] Ibid [45].

[51] Frank Bates “House Keeps, Companions and Family Provision – a Comparative Interlude” (1993) Conv 270, 273.

[52] Sidney Ross “Inheritance Act Claims by Dependents” (2010) 40 Fam Law 490, 498.

[53] [1981] fam 128.

[54] Ibid, 136.

[55] [2000] 1 FLR 363.

[56] [2008] EWHC 1587, [163]- [166].

[57] [1991] 1 FLR 121.

[58] Ibid, 126.

[59] Bishop (n56) 587.