"Where now for testamentary freedom?"
We have enjoyed testamentary freedom in England and Wales for many years, subject of course to the restrictions imposed first by the Inheritance (Provision for Family and Dependants) Act 1938, and later by its more broad-ranging successor, the I(PFD)A 1975. We were allowed to leave our estates to whomever we liked. We could be eccentric, capricious or foolish; that was our right and the law supported it.
Recent caselaw makes it legitimate to ask certain questions regarding these rights. For example, has the boundary between eccentricity (allowed) and irrationality (a possible sign of lost testamentary capacity) been blurred to such an extent that bequests a Judge considers morally repugnant will be labelled irrational, causing the Will in which they are contained to fail? Does the Court of Protection’s use of the ‘best interests’ test when considering applications for Statutory Wills on behalf of incapacitated people allow a Judge to replace eccentric Will-making with his or her own view of what is right? Does the Court of Appeal’s latest interpretation of the 1975 Act, in Ilott v Mitson [2011] EWCA Civ 346 (a case with which I was involved), mean that a testator’s choice of beneficiary will now have a profound effect on the likelihood of a claim under that Act succeeding?
Eccentricity v irrationality
The Court of Appeal’s decision in Sharp v Adam [2006] WTLR 1059 illustrates how difficult it can be in practice to avoid allowing subjective disapproval of the testator’s Will-making decisions to colour the process of investigating testamentary capacity.
The deceased had suffered from multiple sclerosis. As a result, his ability to communicate was very limited. It was correspondingly difficult for anyone to assess his testamentary capacity effectively. His decision to disinherit his daughters without apparent explanation, a decision the Court of Appeal considered to be objectively irrational, was therefore used to lay the foundations for a finding that the testator lacked testamentary capacity. In effect (and of course it was not quite that simple) the perceived irrationality of that decision was taken to be a sign pointing to underlying incapacity.
‘Best interests’
Under the Mental Capacity Act 2007, the Court of Protection is required to consider P’s ‘best interests’ when consider making a Statutory Will.
In the case of Re P [2009] EWHC 163 (Ch), Lewison J held that one of the factors to take into account when considering P’s best interests was that P would want to be seen to be ‘doing the right thing’. Munby J endorsed that approach in Re M – ITW v Z [2009] WTLR 1781, stating that we “have an interest in being remembered as having done ‘the right thing’, either in life or, post mortem, by Will.”
The case of VAC v JAD [2010] EWHC 2159 (Ch) developed this idea further, appearing to show the Court of Protection using its power to disregard the provisions set out in what was, on the face of it, a valid Will. Doubt was cast over whether P had capacity to make that Will. The Court of Protection did not have jurisdiction to rule on that, nor the evidence needed to effectively investigate P’s capacity when making the earlier Will.
Rather than assuming the Will was valid in the absence of a ruling to the contrary, however, the Court of Protection chose to disregard the provisions in the earlier Will when making a Statutory Will for P. The justification for this was that P would not have wanted to bequeath a Will dispute to his beneficiaries; that would not be ‘doing the right thing’. But was that adequate justification for replacing P’s existing Will with one making quite different provision, using a method that meant it would afterwards be impossible for the validity of the Will P had made ever to be tested?
The subsequent decision in Re G (TJ) [2010] EWHC 3005 (COP), which concerned lifetime gifts rather than a Will, may signal a recognition of the danger inherent in the ‘doing the right thing’ test: its subjectivity. What is the ‘right thing’ to one of P’s relatives may be entirely the opposite to another.
Ilott v Mitson and the 1975 Act
Ilott v Mitson was a claim by Heather Ilott against the estate of her mother, Melita Jackson. In 1978, Heather Ilott left home in the night to go and live with her boyfriend, Nick. She was 17 at the time and had lived with her mother, Melita, for the whole of her life. Heather left no note; she did not want to be traced. When Melita found out where she had gone, Heather refused to have anything to do with her. This sequence of events was to mark the beginning of a 26 year estrangement that ended with Melita’s death in 2004.
A couple of years before she died, Melita made a new Will leaving her estate to three charities for whom I acted. Melita’s solicitor, realising that this decision might provoke a claim by Heather after she had died, advised Melita to prepare a letter explaining why she had made that decision. Melita’s determination was such that she went even further. She wrote to Heather to let her know that she would receive nothing and she instructed her executors to fight any claim Heather might bring. After Melita had died, Heather began a claim against her estate, as feared, under the 1975 Act.
It is easy to sympathise with Heather’s position. Her mother disinherited her thanks to an estrangement that each of them perpetuated in their own way. But does that mean that it was right to go against Melita’s Will?
Perhaps more important for the future will be the perception that the Court of Appeal’s decision changes the fact that the estate is to pass to beneficiaries who do not ‘need’ the money from a neutral consideration (as established in Cameron v Treasury Solicitor [1996] 2 FLR) into something that positively helps a claim to succeed (see paragraph 91 of the Court of Appeal’s Judgment in Ilott v Mitson). Eccentricity and foolishness in Will-making are not often alleged where a Will leaves the estate to individuals who demonstrably need it, so are claims under the 1975 Act in danger of becoming another method by which to require testators to make ‘sensible’ Wills?
A right to spite?
At first instance in both in Ilott v Mitson and in the much talked-about case of Gill v Woodall [2010] EWCA Civ 1430, the suggestion was made that the testator decided to leave their estate to charity, not to their daughter, to spite the daughter. Neither testator had left a clear explanation why they had chosen to benefit the particular charities identified in their Will. It is not clear to what extent this consideration influenced the decision reached in each case at first instance, but it does seem to have been something that was at least taken into account.
These may be signs of a fundamental change of outlook since the 19th century. Compare, for example, Sir John Hannen’s summing up in Boughton v Knight [1873] L.R. 3 P. & D. 64:
…by the law of England everyone is left free to choose the person upon whom he will bestow his property after death entirely unfettered in the selection he may think proper to make. He may disinherit, either wholly or partially, his children, and leave his property to strangers to gratify his spite, or to charities to gratify his pride, and we must give effect to his will, however much we may condemn the course he has pursued.
Public response to Ilott v Mitson suggests disillusionment with the modern judiciary’s apparent readiness to interfere in such personal matters. It also suggests that many are wondering whether it is worth bothering to make a Will at all, if it can be overturned after your death by a Judge who does not agree with the choices you have made, or who does not share your view that your children can be expected to fend for themselves once they reach adulthood, if they are not mentally or physically incapable of finding work.
In each of Sharp v Adam, VAC v JAD and Ilott v Mitson, the method differed but the principle behind them appears to have been very similar. Each Judge thought that the testator whose estate they were asked to re-distribute had made the wrong choices. Each then exercised their powers to ‘correct’ what the testator had done, to achieve what was then described as an outcome necessitated by objective considerations, but which was arguably rooted in matters that were in reality subjective.
So are we still allowed to be eccentric or spiteful when making a Will? The answer may be that we are not, and further guidance will be needed if we are to have an obligation to explain the contents of our Wills if they are to be respected. Where does that leave freedom of testamentary disposition and where should the line now be drawn?
James Aspden is a partner at Wilsons Solicitors LLP in the Contentious Trust and Probate team