By Sarah McDermott, Private Client Paralegal
Firstly, what is testamentary freedom?
Testamentary freedom is an important principle in England and Wales that means that you can leave your estate to whoever you wish to, without any obligation to leave it to particular family members or other individuals.
The next question is, does it really exist?
Under the Inheritance (Provision for Family and Dependents) Act 1975, certain people are able to make a claim against somebody’s estate. The classes of people are, spouses, ex-spouses, cohabitees, children, step-children, or any other person who may have been dependent on the deceased immediately before their death. This seems to suggest that, in fact, we do not have testamentary freedom.
However, there is no ‘right’ to inherit from a person’s estate, no matter how you are related to the person who has died, and just because someone makes a claim against an estate does not necessarily mean that they will be successful.
The most important thing you can do to mitigate any sort of claim against your estate, is to make a Will, as this document clearly shows that you have thought about what you would like to happen to your estate upon your death. You can also leave a document with your Will, called a Letter of Wishes, which sets out your reasons for why you have left your Will as you have, and it gives your executors something to use against any claim.
If you do not make a Will, then there are certain rules that have to be followed, called the Intestacy Rules, which can be quite complex, and could mean that your estate ends up with people that you did not want to benefit.
Further, if a claim is brought against an intestate estate, the Court is unable to take into account any wishes of the deceased, so a claim is likely to be more successful.
In conclusion, testamentary freedom is still in existence and is still an important principle of English Law. To exercise it, you should make a Will and, when doing so, you should bear in mind any possible claims that could be made.
For an appointment with Sarah for a new Will, or other private client matter, please call Michelle on 01630 652405.