Apr 20

Testamentary freedom in soapland

Written by Jessica Toller
Associate

DDI: 01423 726606
E: jessica.toller@raworths.co.uk

If like most people you are in social isolation at the moment, you may have been using this time to catch up on the latest storylines in the soap world. Emmerdale recently (1^st April) provided us with a prime example of testamentary freedom and the issues which come with this.

Rhona found out that her partner Graham made a Will shortly before his untimely death leaving her a significant sum of money and ignoring his legal wife Kim, much to Kim’s displeasure. As Chastity exclaimed “it’s not about who deserves it, he had the right to leave his money to anybody he liked!”

Chastity is correct, Graham did have the right to do this, however Kim was quick to retort “you’ll get nothing, I’ll take you to court”. Does Kim have a point?

England is one of the few countries in Europe which has complete testamentary freedom. This means that anyone is free to leave their estate to anyone they choose and that they are not constrained by rules mandating that a certain percentage of their estate has to be left to certain categories of family members.

However, this is not to say that Kim is incorrect. Under the Inheritance (Provision for Family and Dependents) Act 1975, certain people have a right to claim against the estate for a deceased person if they do not think that the Will (or intestacy rules) has made reasonable financial provision for them. You may be thinking “oh well Kim is rich, she doesn’t need the money”, unfortunately for Rhona, a surviving spouse does not need to prove need when making a claim, unlike other categories of claimants like children.

Is there anything Graham could have done to prevent this?

There is nothing which Graham could have done to definitively stop a claim in its tracks but there are measures he could have put in place to minimise the risks and protect his Will as best he could:

1. Prepared a statement of reasons to explain his reasoning behind his Will making. If the claim makes it to Court, this would be his evidence from beyond the grave for the Judge to take into account.
2. Left Kim a gift which would be forfeited in the event that she makes a claim against his estate. This is a balancing exercise between how much you would be willing to leave to someone vs how much you think it would entice them not to make a claim.
3. Divorce Kim before his death. We all know that Kim and Graham had a marriage for convenience which probably could have been brought to an end many years ago. As an ex-wife she would have a very different claim and would have to prove that need for financial provision is reasonable in all the circumstances.

Preparing a Will is a significant matter and one which necessitates looking at the whole family situation to ensure that any possible issues are flagged and addressed before anything happens. If you would like to discuss making a Will, please contact out Trusts, Wills and Estates team for further information on 01423 566666.

Published 6 April 2020