The Law of Succession - Case Study Example

The Law of Succession Testamentary Freedom allows a person the right to leave his property, whether moveable or immoveable, by way of a will to anyone he/she wishes to leave it to. No person is mandatorily obliged to receive a share in a property merely by virtue of having a relationship with a testator. This testamentary freedom will however, be mediated by the need to support a spouse or cohabite, as well as the dependent children of the deceased person. According to Rosenfield1 testamentary freedom is “the power to acknowledge the existing claim structure within a family and to set priorities among claims.”2 It allows the testator the freedom to prescribe the disposal a property as s/he sees fit, allowing scope for provision to be made to those the testator considers fit who may not necessarily be members of his family who would otherwise be entitled to receive shares in the proceeds of his/her estate. According to Beckert, some of the aspects of the relationship between the testator’s individual right to dispose of her/his property as s/he sees fit as pitted against the family of the testator and society is inherent in the development of the law itself3. For instance, in earlier years, there was no right of inheritance per se because the family was viewed as a stable economic unit, which was immortal. As a result, when one individual died, s/he ceased to be a member of the unit, but this did not amount to a real transfer of property. Beckert points out the views of Max Weber, who believed that it was the emerging process of differentiation in acquisition of property, the significance of capital associated with land as a production factor, the prevalence of the dowry system and the separation of the household and the workplace which all contributed to the calculations of internal family relations and the assigning of property rights in the names of individuals4. The process also led to the dissolution of the household and gave rise to the question of determining how to assign property rights. Beckert argues that inheritance law must be viewed as a series of developments that occur in accordance with variations in the discourse, generating viewpoints that are recognized on a collective social basis. This leads to the development of institutions representing universally recognized norms of behavior which are a reflection of the state of collective society at any given point in time. The development of testamentary freedom arises as a response to the dissolution of the family as an automatically stable, enduring unit, allowing more flexibility and incorporation of the individual desire of the testator. However, could this constitute a violation of the rights of the spouse and family members, who may have a stronger claim on the proceeds of a testator’s estate? Arguments in favor of testamentary freedom: In arguing the case for the upholding of testamentary freedom, Rosenfield highlights the views of other authors who suggest that testamentary freedom does not pose a threat; rather it gives a person writing a will the opportunity to: “right a wrong done to an individual, to improve the family’s capability of surviving as a unit…[and]…can function to support the family and social order, and especially those values that undergrid intimate relationships: affection, service, reciprocity, exchange and identification.”5 Testamentary freedom thus permits a deceased person to make allowance for an individual for whom he or she may have a special affection or who may have been of service, but is not automatically entitled to a legal share in the estate by virtue of being a family member. The underlying principle of the freedom of the testator in making decisions on the disposition of his or her property has been at the core of several decisions rendered by the Courts in terms of financial provisions made from a deceased’s estate. For example, in the case of Re Segelman6 Chadwick J stated that “the probability that a will which a testator has executed in circumstances of some formality reflects his intentions is usually of such weight that convincing evidence to the contrary is necessary.” The will as set out by the deceased person will thus represent the intent of the testator, which is accorded primacy by the courts, thereby underlining the fact that testamentary freedom is the defining principle of inheritance law. The case of Re Snoek7 established that a testator has the right to make dispositions out of her estate as she wishes. This is the prevailing position and in the event of a dispute requiring the will to be rectified to provide for an injured party against the will of the testator, proof must be provided to support the claim. The case of Re Salmon8 sets out the guidelines that courts are to look into when determining whether permission can be granted for such a rectification. For instance the Court must look into how promptly a claim for rectification was made, since claims brought after six months may not be considered and whether the applicant has an arguable case. In the event the court determines that this is not so, the primacy of the deceased intent will hold good in the allocation of the proceeds of the deceased person’s will.9 Testamentary freedom is thus a cardinal principle in the making of wills and arises in common law, which allows individual parties freedom in making choices as to how and to whom their estate will be bequeathed upon their death. Freedom of parties was the underlying principle of operation of common law, reflecting the society of the time which was emerging from feudalism with a strong move away from it. Itestamentary freedom became more prevalent as the influence of the ecclesiastical courts reduced, since these courts had exercised restrictions over a testator’s property, requiring provision to be made for dependants and for the church10. A testator is free to dispose of any or all property as desired, creating any gifts, interests or options as s/he desires. Testamentary freedom arose out of common law principles which existed earlier in a framework of society that was somewhat different from what it is today, as a result of which the right of an individual to make dispositions of his or her property in accordance with his/her will was unquestioned and unfettered. However, there may also be instances when the deceased person has failed to make adequate provision for spouses and dependents, in which case courts may be required to supersede the primacy of testamentary provision. For example, in the case of Grattan v McNaughton, Grattan and Brydson11 the Court found the testator’s will to be straightforward with intent clearly spelt out. But in this instance, the deceased person had exercised his testamentary freedom, but failed to make reasonable financial provision for his widow. As a result, the rights of the widow/former spouse were compromised and the Court overrode the testamentary right of the deceased person and allowed an award to be made to the widow under the provisions of the Inheritance (Provision for Family and Dependants) Act 1975. While it may be argued that a deceased person’s testamentary freedom should be upheld, these rights cannot be absolute; they may need to be restrained in some instances such as the above case, to ensure that the rights of those who are owed a moral duty of support are protected. Thus, when a deceased person leaves a spouse and children who have been receiving provision from the estate, a sudden denial of this support on the basis of the death of the testator and lack of provision in the will may be an inequitable position. On this basis, it may not be equitable or desirable to allow unrestrained testamentary freedom in instances where the rights of a deceased person’s nearest family members is being compromised. The testator should therefore be free to dispose of his/her property in any way, provided that some basic provisions have first been made to provide for the needs of those family members dependent upon the testator. According to Glanvill, one third of a deceased person’s chattels were to pass to his heir, one third to his wife while only the balance of one third was to be disposed of as he wished12. The Inheritance (Provision for Family and Dependants) Act 1975: This Act has been specifically framed to protect the rights of family members to a share in the testator’s estate, since testamentary freedom could otherwise undermine their rights and results in the property being allocated to another person designated by the testator. Under the provisions of this Act, person/s who before the death of the deceased were “being maintained, either wholly or in part, by the deceased”13 will have the right to apply to the Court for some financial provision to made in his or her behalf. In arriving at a determination of whether or not the person in question was being maintained by the deceased, the provisions of the Act require the courts to determine if the deceased was “making a substantial contribution in money or money’s worth towards the reasonable needs of that person.”14 In terms of specifying what kind of financial provision is to be made, the Act also clarifies that a spouse may be entitled to receive proceeds from the deceased person’s estate as may be deemed reasonable “in all the circumstances of the case for a husband or wife to receive; whether or not that provision is required for his or her maintenance”15, while in the case of other beneficiaries entitled to receive provision from the deceased estate, allocations are to made on the basis of what is reasonable in the circumstances of the case. This clearly shows that spouses have been accorded primacy in the disposition of a deceased estate and financial provisions to be made from it thereof; they will be entitled to financial provisions irrespective of whether or not the deceased has actually made provision in the will for allocations to be made to the spouse. The primacy of the spouse in terms of provision from a deceased person’s estate has recently been extended to the case of cohabitees as well. This is executed through section 1(1) (ba) of the Inheritance Act 1975, which entitles a cohabitee who satisfies certain conditions to apply for provision from the estate of his/her partner. The qualifying criteria are that the cohabitee should have been residing in the same household as the husband or wife of the deceased person for a minimum period of two years. In the recent case of Kotke v Saffarine16 the parties maintained separate households, and although they had commenced living together in one residence before the death of the deceased, the two year period had not been completed, so provision could not be made for the cohabitee on the basis of the Act. This was also the case in Churchill v Roach17 where the cohabitants lived in adjacent houses and knocked down the separating wall to make one residence; yet the lack of a sufficient length of time living together meant that provision could not be made to the cohabitee. This case also spelt out the different aspects that constitute a spousal relationship that entitle a spouse for primacy in receiving proceeds from a deceased person’s estate. Some of these are (a) the permanent nature of the relationship (b) intimacy and frequent contact (c)mutual support (d) sharing of resources and (e) placing a voluntary restraint on personal freedom. It may thus be inferred that the basis for determining whether financial provision is to be made to a spouse and cohabite will be dependent upon the closeness and intimacy in the relationship. In the case of a spouse, such a closeness and living together is mandated by the legal bond between the parties. In entering into a marriage or a close partnership, each of the parties is thus voluntarily surrendering personal freedoms in order to live with, support and care for another person. The intimacy and exclusive nature that is endowed on a close marital/cohabiting relationship requires mutual sacrifices and thereby implies a level of commitment to each other, which it may be argued, should also require certain mutual responsibilities. As a result, a testator will be obliged to make provision for his/her spouse in the will. In a similar manner, it may be argued that the children of a testator may be dependent upon him/her and if a will does not make adequate provision for them but disinherits them, their rights could be adversely affected. Early succession law held that a testator owed a moral duty towards his children and was obliged to provide at least one third of his will for their continued care after his death.18 However, testamentary freedom overrode this requirement; hence the Inheritance Act of 1975 has made specific provision for spouses and children to request financial provision when a testator has failed to do so. Does this constitute an infringement of the rights of the testator? The deceased person has the right to dispose of his/her property at will, but it is the underlying moral duty towards the spouse and children which provides justification for the Inheritance Act. This does not necessarily indicate that the freedom of the testator is being infringed, because he/she is still at liberty to formulate a will with any desired conditions. Additionally, a testator can also impose certain conditions that can be required to be performed before proceeds from the will can be bequeathed. For example, in the case of Re Hollis Hospital Trustees and Hagues Contract19 a testator chose to grant land to the hospital rather than to his family members, however with the stipulation that if the land was ever used for any purposes other than a hospital, then it would revert to the heirs of the testator. In another case, land was bequeathed to an heir on the condition that he was never to sell the property out of the family.20 A stipulation in a will that bequeaths a gift onto a woman for life, but if she remarries then the life interest ceases, is an example of a clause that is conditional in the will, whereby a testator can ensure that the receipt of a gift or asset is made conditional upon the performance of the testator’s wishes. In the case of Tataryn v Tataryn21 the Court held that a testator has both a legal and moral duty towards spouse and children. The legal duty arises out of statutory provisions existing in family law, which require a division of assets between husband and wives and the obligation to support dependent children. In the case of the spouse, the “legal obligations upon a testator during his or her lifetime reflect a clear and unequivocal social expectation , expressed through society’s elected representatives and the judicial doctrine of its courts.”22 These legal obligations must be imposed upon a deceased person as if s/he were alive and obliged to continue the support. Additionally there may also be a moral duty that is owed in terms of “society’s reasonable expectations of what a judicious person would do in the circumstances, by reference to contemporary community standards.”23 On this basis, it may be argued that a testator may have both a moral and legal duty towards spouse and dependent children, requiring her/him to make provision from the estate. In the case of adult, independent children, the obligation may be waived depending upon whether or not the testator’s estate will support it. But in the case of dependent children, there is a strong case that can be made out supporting the position that the testator has a moral duty to provide for their welfare and continued financial needs, since they are not in a position to support themselves. This argument can also be extended to adult independent children where the size of the testator’s estate is large enough, because the nature of the close relationship between the testator, spouse and children may require the performance of such a duty. In view of the various statutory provisions existing in the UK such as the Family Law Act of 1996, the Children Act 2004, as well as the Marriage Act 1994 and other statutory provisions, all of which reflect society’s position on the need to support spouses and children, the legal and moral duty of a testator are implicit and mandatory. While laws of succession in the UK have reinforced testamentary freedom, the rights of the testator cannot be held to be absolute to the extent that a will fails to make adequate financial provision for spouse and dependent children. The legal and moral duty which exists mandates that a testator make such provision, failing which the Inheritance Act 1975 allows for provision to be made by the courts. Other countries have also recognized the need for testamentary freedom to not be absolute and for provision to be made for close family members as set out below. Differences in inheritance law in different countries: Beckert (2008) identifies differences in inheritance law in France, Germany and the United States. In France, testators are allowed only a limited degree of testamentary freedom while in the case of the United States, such freedom is almost unlimited. The rights of the family are much less important in the United States as compared to Germany and France. In comparing the UK and France for instance, French succession law denotes children as the primary inheritors of an estate while UK law allows first rights of succession to the spouse. Children in France are considered to the protected heirs of a dying person’s estate and will have first claim on the property, while the surviving spouse has little right to it24. As a result, testamentary rights are much less important in France as compared to the UK and the United States. Real partitioning is required in France before properties can be effectively sold; when a part of an undivided estate is disposed of, such a disposal is not necessarily void but will become effective only after future partition of the property.25 The testator’s obligation to spouse and family is set out legally through the provisions of the Inheritance Act of 1975. Bibliography * “Beware: French succession law can override your will” Available online at URL: http://www.frenchentree.com/retiring-to-france/DisplayArticle.asp?ID=24930; Retrieved March 30, 2008 * Beckert, Jens, 2008. “Inherited wealth” Princeton University Press * Cox, “The influence of the common law on the decline of the ecclesiastical courts of the Church of England”, Rutgers Journal of Law and Religion, Available online at URL: http://org.law.rutgers.edu/publications/law-religion/articles/RJLR_3_1_3.pdf , Retrieved March 30, 2008 * Dyson, Henry, 2003. “French Property and Inheritance Law: Principles and Practice”, Oxford University Press * Glanvill, Ranulf de, 1993. “Treatise on the law and custom of the realm of England”, GD Hall at pp 4,5 * Rosenfield, Jeffrey P, 1995. “The Heir and the spare: Evasiveness, Role-complexity and Patterns of Inheritance”, In “Social Roles and Social Institutions: essays in honor of Rose Laub Coser” (Rose Laud Coser, Judith R Blau and Norman Goodman edn), Transaction Books Case law cited: * Church and Roach (2003) WTLR 779 * Grattan v McNaughton, Grattan and Brydson (2001) Ch D, LTL 8/8/2001 * Kotke v Saffarine (2005) EWCA 221; (2005) 2 FLR 517 * Re Dennis (1981) 2 All ER 140 * Re Hollis Hospital trustees and Hagues Contract (1899) 2 Ch 540 * Re McLeay (1875) LR 20 Eq 186 * Re Segelman (1996) Ch 171 * Re Snoek (1988) 13 Family Law, 18 * Re Salmon (1979) 3 WLR 802 * Tataryn v Tataryn (1994) S SCR 807 Read More