Testamentary freedom is seen as a person’s right to distribute their estate in whatever manner they may wish.

The concept of testamentary freedom is a hot topic of debate and a relatively unusual quirk of English law. In many jurisdictions the concept of forced heirship exists. In France, for example, children are reserved heirs to their parents. Therefore, when one parent dies, the children have a protected right to inherit part of the estate.

In England and Wales, the only exception to the principle of testamentary freedom is found under the Inheritance (Provision for Family and Dependents) Act 1975 (the “1975 Act”). Therefore, the door is always ajar, by reference to the 1975 Act, for those that were dependent upon the deceased prior to death.

The 1975 Act is often seen as recognition for the need of testators to make a provision for those to whom they owe an obligation. Part of the justification for this perceived interference is to ensure that those dependent upon the deceased are not left to fall back on the state for support.

Regardless of the varying debates surrounding the 1975 Act, the legislation provides a gateway for classes of individuals not catered for under a will or the rules of intestacy to pursue a provision from a deceased’s estate.

Who?

The categories of prospective applicants under the 1975 Act are:

  • Spouse or civil partner;
  • Former spouse or civil partner (provided they have not remarried);
  • Cohabitees who had been living together for two years prior to death;
  • Children of the deceased;
  • Persons who were treated as a child of the family by the deceased; and
  • Any other person who was being maintained, wholly or partly, by the deceased immediately prior to death.

What?

The remedy for a successful applicant pursuant to the 1975 Act is usually a ‘reasonable financial provision’. This is often a complicated question where a subjective assessment is required based on all factors of the case therefore specific guidance must be sought.

In majority of cases, with the exception of a spouse or civil partner, the amount awarded will correspond directly to their overall maintenance needs of that individual. In cases involving a spouse or civil partner, the provision may be slightly wider and include a ‘reasonable’ sum, not just what is required for maintenance purposes.

When?

As a starting point, any claim under the 1975 Act must be issued within six months of the date of the grant of representation. In the alternative, permission must be sought from the court, giving proper grounds for the lateness of the claim. This can be very unpredictable as therefore, meeting the six month time limit is usually the safest way to proceed.

Claims brought pursuant to the 1975 Act are often complex and there are relatively short deadlines to adhere to. Therefore, if you are an executor, beneficiary or prospective 1975 Act applicant it is imperative that you take advice early on.

 

Our new Problem Probate Drop In Clinic runs from Thursday 19 January 2023. Over the next 8 weeks Aaron Pottle and Gregory John will be offering free no obligation 15 minute consultations in our Braintree office on a Thursday morning between 10am and 1pm whilst also offering online Q&A’s, so keep an eye on our socials as well.