Testamentary Freedom v Family Obligation – Where does the Balance Lie?

About Jane CollisJane Collis

Jane Collis is a member of the property and private client practice group, specializing in estate planning, wills, international and domestic trusts and probate.

Jane Collis’s full profile on mjm.bm.

Our property is ours to give. This belief forms the foundation of the common law principle of testamentary freedom – that by the terms of your last will & testament, you may leave whatever you choose to whomever you choose. In Bermuda, the Wills Act 1988 enshrines this principle at clause 5(1): “…every person may dispose, by will executed in accordance with this Act, of all real estate and all personal estate owned by him at the time of his death.”. Nevertheless, this freedom was never seen as entirely divorced from the context of family obligation, as was eloquently expressed by Chief Justice Cockburn in his judgment in the case of Banks v Goodfellow (1870) 5 LR QB 549, 563-565:

    “Yet it is clear that, though the law leaves to the owner of property absolute freedom in this ultimate disposal of that of which he is enabled to dispose, a moral responsibility of no ordinary importance attaches to the exercise of the right thus given … The English law leaves everything to the unfettered discretion of the testator, on the assumption that, though in some instances, caprice or passion, or the power of new ties, or artful contrivance, or sinister influence, may lead to the neglect of claims that ought to be attended to, yet, the instincts, affections, and common sentiments of mankind may be safely trusted to secure, on the whole, a better disposition of the property of the dead, and one more accurately adjusted to the requirements of each particular case, than could be obtained through a distribution prescribed by the stereotyped and inflexible rules of the general law.”

Historically, the concept of testamentary freedom in the English common law developed against the backdrop of the end of feudalism, as medieval inheritance of land on intestacy had been based on the law of primogeniture, where the firstborn son took all. It also developed within the intellectual discourse and exchange of theories of political and legal philosophy that explored the inevitable conflict between state control and personal freedom and promoted the concept of freedom of contract. Thus, John Stuart Mill in his work, Principles of Political Economy (1848) Bk II, ch 2 [4], said: “…the ownership of a thing cannot be looked upon as complete without the power of bestowing it, at death or during life, at the owner’s pleasure….”.

In many parts of the world – parts of Europe, South America and the Middle East, which follow the civil code or Sharia law, this remains, at least in part, a guiding principle, so that family comes first and a certain percentage of one’s estate (the “forced estate”) must pass, by law, to designated family members, whether they have, by their conduct, earned that benefit or not. This is commonly referred to as “forced heirship”. Writing in the late 18th century, Jeremy Bentham referred to testamentary freedom as a means for a man to reward “dutiful and meritorious conduct” by family members, which a system of forced heirship does not entirely countenance. “Clothed with the power of making a will, which is a branch of penal and remuneratory legislation, he may be considered as a magistrate set over the little kingdom which is called a family, to preserve it in good order.” (see Bentham, Principles of the Civil Code, in the Works of Jeremy Bentham – Published under the Supervision of his Executor John Bowring Vol 1 Part II Chap 4 Of Wills (Edinburgh 1843) reproduced at www.laits.utexas.edu).

Even in countries founded on the principle of testamentary freedom, there has been a statutory recognition that there are competing forces in society and that every testator has some level of responsibility to provide for his immediate dependants. In Bermuda, this responsibility is recognised in the Succession Act 1974, which provides a means for disinherited dependants (generally immediate family members) to make a claim out of a deceased’s estate for financial provision.

Recently, there has been speculation that the end of testamentary freedom may lurk around the corner, heralded in no small part by the so-called “landmark” Court of Appeal case of Ilott v Mitson 2015 EWCA Civ 797. The action was brought by Mrs Ilott under the Inheritance (Provision for Family and Dependants) Act 1975, against the estate of her mother, the deceased, Mrs Jackson, who left her estate, worth approximately £450,000, to several animal charities. Mrs Ilott, who was raising five children on her own, based her claim on her low level of income and her reliance on state benefits. Mother and daughter had been estranged for many, many years. There had never been any meaningful reconciliation between them and Mrs Jackson had provided no financial support to Mrs Ilott during her lifetime. Mrs Jackson’s disinheritance of Mrs Ilott had been entirely deliberate.

Overturning an award of £50,000 made in the High Court, the Court of Appeal awarded Mrs Ilott the sum of £164,000, on the basis that her income was so low, even having regard to the fact that she had not been a dependant of her mother, she nevertheless had a legitimate claim against the estate. The award was sufficient to enable her to purchase a council house and settle a small amount in the bank, but not so much as to interfere with her ability to continue to receive state benefits. The balance of the estate went to the designated charities.

The basis for the decision seems to have rested on the behaviour of the mother, which the court found to be “unreasonable, capricious and harsh”. Mrs Jackson had no special relationship or connection to the designated charities, but simply wanted to punish Mrs Ilott. In all the facts and circumstances, Mrs. Jackson’s behaviour was not perceived by the Court as reasonable for the mother of an only child, struggling to raise five children on state support.
Interestingly, leave has recently been granted to the charities for appeal to the Supreme Court, so we have not yet heard the final decision on the matter. As it stands, however, the case was arguably not at all about the court’s willingness to ignore Ms Jackson’s testamentary freedom, but more about ensuring that financial provision was made from her estate for someone to whom she owed an obligation – entirely within the perceived framework of the existing legislation, if not the expressed language.

What can one do if one doesn’t wish to benefit a family member by will? First of all, be careful about any pattern of financial support during your lifetime. Make gifts from time to time, as opposed to paying the rent, or insuring the house or paying the school fees. If you have a sound reason for excluding a family member from benefit out of your estate, make sure you communicate it when you give instructions for the drafting of your will. You are free to make a statement in your will as to the reason why someone will not benefit. It is important to think carefully about this last option, however. Once admitted to probate, a will is a matter of public record. Your words can sting through all eternity if not carefully uttered.

From an intellectual perspective, one can see the continuing conflict between the competing goals of personal freedom and moral and family obligation. On the one hand, our property should be ours to do with as we wish, to reward and to punish, if we are so minded, and we should seek to foster independence in our family members, wherever this is possible, so that a claim for financial provision is not an option. But, we cannot completely turn our backs on our dependants, nor would we wish to be on the receiving end of that exercise of testamentary freedom and for these purposes, the existing legislation is a valuable protection.

Personally, my favourite plan is simply to live well enough, but not quite long enough, to exhaust my savings!

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