UK: The Dead Hand

The title of this article is taken from George Eliot’s novel Middlemarch. It refers to the will of Mr Casaubon by which he leaves his estate to his young wife Dorothea providing that she does not marry Mr Casaubon’s cousin Will Ladislaw. Mr Casaubon’s action is reprehensible because it implies a suspicion of his wife’s conduct during his lifetime and attempts to control her actions from beyond the grave.

However, the desire to protect one’s estate from predatory strangers is not unreasonable and is often at the forefront of a testator’s mind when they consider drafting their will. It is a natural instinct to seek to protect one’s estate for one’s children or one’s family and does not necessarily imply mistrust of one’s spouse. It is reasonable to assume that a man or woman bereaved in early life may wish to remarry or form a new relationship and may have more children. What then is the position of the deceased’s estate? If it is left entirely to the surviving spouse it may be dissipated by an unscrupulous partner and the children will be left unprotected. These fears can be very real, particularly to a testator who is facing imminent death.

What therefore is the solution? It would be foolish to pretend that there is a simple legal solution to this dilemma. The law rarely provides an instant solution to matters of conscience. However, where there are sufficient assets in the estate, increasingly couples are providing that the survivor should have a life interest in part or all of the estate. This means that the survivor has access during their lifetime to the income from the assets which can be invested to provide a good rate of return but the underlying capital will be protected for the deceased’s children who would ultimately inherit. It should be stressed that this solution is only available where the estate is of sufficient size to provide the surviving spouse with an adequate income for him or her to provide for the children and themselves.

Another less well known solution is for the couple to make "mutual wills" By this doctrine both parties make wills leaving all their estate to a third party (the children for instance) and at the same time make an agreement that their wills are unalterable. After the death of the first spouse the survivor holds the estate on trust for the third party. The survivor has access to all the assets as if they had inherited absolutely but the terms of their will become irrevocable from that point and the children’s interest is therefore protected regardless of whether the survivor remarries. The agreement can be terminated at any point before the first death.

The obvious problem which this doctrine presents is that of enforceability. However, if clear evidence of the agreement is placed with the will the third party could rely on this in order to enforce their interest after the second death. The Court will uphold mutual wills where there is sufficient evidence of intention to create such an arrangement. This can be a solution where the estate is not of sufficient size to allow a life interest to be created.

Most couples feel a certain reluctance in discussing their wills and their fears for the future. Experience shows however, that to do so is the surest way to prevent hurt and misunderstanding (and even litigation) after death.