Making your Will known

Testamentary freedom is a well-established principle of English Law – you should, in theory, be free to leave your estate to who you see fit. However, this freedom is not absolute.

The Inheritance (Provision for Family and Dependants) Act was introduced during the late 70s and entitles various categories of people close to the deceased to claim “reasonable financial provision” from an estate. So, while you may make provisions to leave your entire estate to Battersea Dogs’ Home, your family, financial dependents and even former spouses could challenge your Will if they can show they had a financial dependency on the deceased.

The fact that a Will can be challenged in court seems to represent a significant encroachment on the concept of testamentary freedom. But is it one which is essential in order to meet the needs and expectations of those who have been bereaved? And how does the law decide what is reasonable?

The judge in a famous case (Re Dennis) heard in 1981 said: A person who is physically capable of earning his own living faces a difficult task in getting provision made for himself because the court is inclined to ask: “Why should anybody else make provision for you if you are not capable of maintaining yourself?” 

The courts may therefore see a distinction between an adult child who has been earning their own living independently and one who has acted as a sole carer for the deceased at the expense of their own financial freedom. 

Although there are many ways to challenge a Will, some of which have developed through case law and others set in legislation, it does not mean that testamentary freedom is dead. Quite the opposite, in fact, and the importance of Will writing should not be diminished. 

Writing a Will (and making sure it’s kept up to date) allows you to properly plan for those left behind, mitigate tax, protect beneficiaries, and appoint testamentary guardians and appropriate executors. Other helpful directions can also be included, like funeral and burial wishes.

Without a Will, your estate is distributed according to the rules of intestacy. This could lead to complications and disputes, causing more headaches for your loved ones at an already difficult time.

For more information, contact Winter Addis at [email protected] or call 01768 347 084.