Can You Leave Your Estate to Anyone You Choose? | Curtis Parkinson
Testamentary Freedom

Can You Leave Your Estate to Anyone You Choose?

Fundamentally, English law upholds the principle of testamentary freedom. In other words, the person making a Will (known as the testator) can leave their estate to anyone they choose.

However, there is an exception. In England, the Inheritance (Provision for Family and Dependants) Act 1975 safeguards family members from being disinherited. Anyone eligible spouse, civil partner, ex-spouse (provided they haven’t re-married), unmarried cohabitee, child (including adult children) and other dependants) has the right to apply to the court for ‘reasonable financial provision’ from the deceased person’s estate.

Testamentary Freedom – Why Case Law Matters

Cunliffe v Fielden [2006]

Years after Cunliffe v Fielden, Lord Justice Wall’s judgment is still a leading Inheritance Act 1975 case. In 2006, he stated:

“A deceased spouse who leaves a widow is entitled to bequeath his estate to whomsoever he pleases: his only statutory obligation is to make reasonable financial provision for his widow.”

This provision continues to generate many claims.

Beg v Beg & Ors [2021] EWHC 2598 (Ch)

In this very recent case, Arif Beg, who inherited from his bother Ehsan by survivorship, has been directed by the court to return £80,000 worth of the equity to his dead brother’s widow.

Background

Ehsan Beg died in October 2019. He left his entire estate to his wife Amina, in a Will, drawn up in Oct 2010.

Ehsan and Amina’s house was initially inherited by Ehsan and his brother Arif after their mother’s death in 2009. However, the house was registered in Ehsan and Arif’s joint names when Ehsan died. It was unclear whether the brothers held the property as beneficial joint tenants or as beneficial tenants-in-common.

The Dispute

Arif claimed that the house was held under a joint tenancy, giving him the right to inherit his brother’s share automatically through survivorship, irrespective of what was stipulated in Ehsan’s Will.

Meanwhile, Amina argued that the brothers held the house as tenants-in-common, which meant that Ehsan’s share should automatically pass to her under the terms of his Will.

Under the Inheritance (Provision for Family and Dependants) Act 1975 (the Act), Amina also brought a claim for reasonable financial provision, stating that Ehsan’s should be brought back to his estate and transferred to her.

Judgment

After examining the evidence, Judge Cooke confirmed that the house had been held as a beneficial joint tenancy. As a result, Ehsan Beg’s one-half beneficial interest would pass to his brother Arif by survivorship.

Next, he considered Amina’s claim under the Inheritance Act. Judge Cooke acknowledged the need for Amina and her child to be provided for, including living in a family home.  However, it was clear that Ehsan’s Will did not make reasonable provision for this because his joint interest in the family home passed to his brother Arif.

However, Judge Cooke took Ehsan’s second house into account. When Ehsan died, the house was mortgaged and rented out to a tenant.  Whilst the house was inherited by Amina, along with the rest of her husband’s estate, if Amina gave notice to the tenant, she would lose the income that paid the mortgage.

Considering Amina’s disclosed income from benefits, she could not settle the mortgage or fund monthly payments. So, Cooke ordered Ehsan’s joint interest (to the value of £80,000) in his family home be brought into his estate to pay off the mortgage on the rented-out second home. Amina Beg and her child could then live in it mortgage-free.

Essentially, the house initially bequeathed to brothers Eshan and Arif would be owned wholly by Arif (notwithstanding the £80k payment from equity to Amina).

Our Advice

Claims for reasonable financial provision are taken seriously by the courts. So, our advice is to take professional advice.

Make sure when you make a Will, your wishes are unambiguous. If you plan something unexpected or controversial, explain why. And make sure your Will is kept up to date to reflect your current circumstances.

Please contact us for further advice about an Inheritance Act claim, making a Will or any other Wills, Trusts, or Probate matter. We’re here to help.

Please note that all views, comments or opinions expressed are for information only and do not constitute and should not be interpreted as being comprehensive or as giving legal advice. No one should seek to rely or act upon, or refrain from acting upon, the views, comments or opinions expressed herein without first obtaining specialist, professional or independent advice. While every effort has been made to ensure accuracy, Curtis Parkinson cannot be held liable for any errors, omissions or inaccuracies.

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