UK: Where There Is A Will... There May Not Be A Way

It seems it is loony season in the UK courts....again. A recent decision seems to suggest that the UK is moving towards a civil law type system which removes the right of individuals to decide who benefits from their estate on their death. Until now an individual could leave their property to whomever they wished without interference from the courts. It seems this is no longer the case. In countries which apply civil or Sharia law the state largely dictates what must happen to a person's wealth after their death. Such laws can be generically described as "forced heirship legislation". Provisions vary from country to country but in most civil law jurisdictions one third of the total estate must go to the surviving spouse, one third must be equally divided between children and a testator can do what he wishes with the remaining one third. Under Sharia law (applicable in most Muslim countries) there are even greater restrictions. The majority of each estate has to be divided in fixed shares amongst surviving relatives. Very little flexibility is allowed and there is very little scope for leaving bequests to non-relatives. Sons are favoured and must receive twice as much as daughters. Spouses are rarely considered. These laws would apply not only to residents and nationals of those countries but also to assets located in same-so beware if you have investments in countries which apply Sharia or civil law.

In the UK Mrs. Melita Jackson left the vast majority of her estate to a group of charities and specifically excluded her daughter Heather from benefit. Alongside her will Mrs. Jackson wrote a letter to her executors which explained her attitude to her estranged daughter fulsomely:

I have made no provision in my Will for my only child and daughter, Heather Ilott, for the reasons stated below.

My daughter left me on Sunday 19 February 1978 when she was only 17 years of age. Whilst I was still sleeping she crept out of my house during the early hours of the morning. I later discovered that she was living with a man named N Ilott. Mr Ilott's mother had allowed my daughter to live with the family at Great Munden, Hertfordshire. In spite of all my efforts to reconcile with her she did not return home.  My daughter asked that I contact her no more.

I have only seen my daughter twice since she left home, on my 60th birthday and in May 2001. My daughter now has five children and I have not seen any of them since my 60th birthday.

My daughter has been extremely deceitful to me and has told me a number of lies.

Because my daughter left me without any explanation and has made no effort to reconcile with me I feel as though I have no moral or financial obligation to provide for her. My daughter has not been financially reliant upon me since she left home, although I did make gifts of money to her on her birthday and at Christmas up to and including her 21st birthday, although she refused to acknowledge any of the payments that I made to her.

If my daughter should bring a claim against my estate I instruct my Executors to defend such a claim as I can see no reason why my daughter should benefit in any way from my estate bearing in mind the distress and worry she has caused me over the years. I have made it clear to my daughter during her lifetime that she can expect no inheritance from me when I die.

My Executors should use this letter as evidence in any Court proceedings as they think fit.

Despite the above, Heather successfully claimed £50,000 from the will using a provision of English law which is normally applied when a dependent of the testator is left without financial support. The total value of the estate was £486,000 so she got over 10%. It seems the court awarded this sum on the sole ground that Heather had five children and was living on benefits. So a very responsible individual, then. Heather decided to appeal the case asking for more. This, it seems, was an error on her part as the charities who were losing out cross appealed and the high court reduced her entitlement to zero but the court of appeal later reaffirmed the original judgment reinstating the £50,000 provision.

This is clearly a rather worrying development. Heather seemed less than a model child and she had survived very well for 17 years without resort to her mother's finances so is definitively not a dependent. There seems little reason why the court should award her anything from the will unless the UK agrees that testators are no longer free to do what they wish but must, under all circumstances, bequeath at least a portion of their estate to their children whether they like it or not. Remember, the Hong Kong courts are not bound to follow UK decisions but such decisions tend to be highly persuasive here so should be borne in mind. So will this decision be applied in Hong Kong and can it be used by disinherited children to claim part of an estate? Probably.

The solution is relatively simple. Do not die owning anything of substance. There are many different ways of avoiding the often lengthy and expensive administration (the probate procedure) of a will. You can give all your money away before you die (in the UK you will have to do this at least 7 years before to avoid lifetime transfer charges) but many people find that unpalatable as they do not wish to be reliant upon others for their future upkeep. You could spend it all. That will be the most fun but many want to leave something to family and children and timing matters so you have nothing left but enough money to last may well be difficult. The best option is to transfer all substantive assets and wealth into a trust structure or equivalent which removes the need for a will altogether. If these arrangements are structured correctly not only should this prevent claims against the estate arising (because there isn't one to claim against) but it may also have substantial tax and asset protection advantages. It will certainly allow for quick and easy administration of the estate, because you have sorted your affairs out while you were around to do it. After all, you will know better than anybody else where your assets are and how they can best be transferred easily and quickly and at the least cost. Trusts have long been used for these purposes to great effect and as long as they are both set up and administered correctly can prove extremely effective in by-passing the provisions of civil and Sharia law (and now avoiding claims similar to this under UK common law principles).

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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