UK Supreme Court Re-Visits Testamentary Freedom

In a decision released on 15 March 2017 , overturning the Court of Appeal, the UKSC reminds courts that when considering claims for financial support from the estate of a deceased, the test is not whether the deceased behaved unreasonably in leaving the will they did.

The right question for the court is: did the will/intestacy make reasonable financial provision?, not whether the deceased acted unreasonably.

Unreasonable testamentary behaviour of the deceased may be considered, but English law, the court confirmed, recognizes the freedom of individuals to dispose of their assets by will in whatever manner they wish, subject to the statutory requirement to make reasonable financial provision for a limited class of persons.

The court has no carte blanche to make the deceased’s disposition accord with what it might have thought sensible, if it had been in the deceased’s position.

The deceased left her estate of 486,000 pounds to three charities, with which she had no particular connection during her life, and cut out her only child Heather Illott, who had eloped and married as a young woman. A 26 year estrangement between mother and daughter followed.

At the time of the mother’s death, Illott, her husband and four children lived in modest circumstances, renting accommodation subsidized by the public purse.

At first instance the judge found the deceased’s will did not make reasonable provision for her daughter. He awarded her 50,000 pounds. The court of appeal saw its task as to, “balance the claims on the estate fairly”. It increased the award giving Illott sufficient capital to purchase her rental accommodation (roughly 150,000 pounds) plus 20,000 pounds. The UKSC restored the trial judge’s award.

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