The Inheritance Act of 1975 - Essay Example

A of controversy for several decades, The Inheritance (Provision for Family and Dependants) Act of 1975 continues to spark debates in the areas of law, justice and human rights in the United Kingdom. Previous and recent decisions of the court on cases with regard the aforementioned statute sometimes meets fierce oppositions from experts and analysts on the field of Family Law (Angus et al 2006). These debates are often brought about by the contentions that ‘unfair’ and ‘restrictive’ provisions stipulated on the statute are prejudicial against the children claiming maintenance from the deceased whose estate or property is disputed. There are also those who assert that the children of an estate owner or a holder of property are deemed ‘inferior’ under the British law as compared to the children, aptly given definite rights on inheritance, in other economically advanced countries around Europe. Thus, there seems to be a prevailing concept that the existing statute is unsuccessful in protecting the interests of children of the deceased testator as the law fails to adequately bestow the aforesaid children sufficient protection under the current statute (Thomas 2006). However, in order for us to prove or disprove this contention, it is imperative that the statute itself be evaluated and current and previous cases, which invoke the particular law, be appropriately examined. First, the claim under the Inheritance (Provision for Family and Dependants) Act 1975 is a supplication of an individual to become a beneficiary or a greater beneficiary of the deceased estate holder as he failed to include the claimant in his will or his intestacy rules (Borkowski 2002). The claim under the 1975 Act can also be invoked if a petitioner believes that he should be bestowed greater benefit than is afforded for under the will. The chance of the claimant to contest what the will stipulates is one interesting innovation in the British law of inheritance. The Act provides that a child of the deceased or anybody ‘considered’ as a child of the family can petition for a claim. Moreover, the statute does not restrict its coverage only on the children of the deceased (Cretney 1997). The law grants a wide scope, which includes surviving spouses, ‘other applicants’, and mistresses of the deceased. The court then must consider ‘reasonable financial provision’ for the claimant depending on the applicant’s status. If the applicant is the spouse of the deceased, the court will determine financial provisions reasonable for the husband or wife. The constitution of the reasonability of financial provisions granted to the spouse has its precedence on recent cases settled by the court of England and Wales as in the case of White v White [2001] in which the court presumed equality in entitlement of assets prejudicial to the claimant (Parry 2002). However, the court contends that ‘equality’ does not mean equal division of property but a gauge in effecting fairness and ‘justice’ on the nature of property division between married couples. This stipulation on the 1975 Inheritance Act is one significant cause of debate and furor since the children of the deceased are not afforded similar rights. The Inheritance Act ‘merely’ endows the children of the deceased with ‘maintenance’. This is questionable for some because it does not treat the children of the deceased as “equal” of the spouse (Cretney 1997). In addition, provisions in the statute itself specify that the court must consider 1”(a) the financial resources and financial needs which the applicant has or is likely to have in the foreseeable future; (b) the financial resources and financial needs which any other applicant for an order under section 2 of this Act has or is likely to have in the foreseeable future; (c) the financial resources and financial needs which any beneficiary of the estate of the deceased has or is likely to have in the foreseeable future.” The court also needs to consider the size and nature of the property of the deceased and the 2“deceaseds moral obligation towards any claimant or beneficiary”. These restrictions and considerations utilized by the court for some, only illustrates that the interests of the children of the deceased are not adequately secured. Added to that, are the court’s impositions of ‘tough’ requirements on the children of the deceased which includes full information of the claimant’s financial needs, his resources at an early age, his earning ability, disabilities backed by medical evidence, and his educational background (Cretney et al, 1997). Although in some cases, when the deceased had a clear obligation to maintain and the relationship of financial dependence between the claimant and the deceased has been established by the court, the applicant’s claim are considered by the court, as in the case of 3 Re Jennings sub nom Harlow v National Westminster Bank [1994] or in 4Goodchild v Goodchild [1997] and Espinosa v Bourke [1999] where the court decided that the deceased’s promise to the applicant to leave part of an asset, creates an obligation to the claimant. In order for us to evaluate effectively whether the statute that govern inheritance in Great Britain is detrimental or not to the children of the deceased, we need to carefully scrutinize the cases resolved by the courts. The case of 5 Leach V Leach in 1985, was when the court of England and Wales decided that an ‘adult’, a term stipulated in the statute, is defined as an individual who has been 6treated by the deceased as a child of the family within the Inheritance Act of 1975 and was thereby awarded ‘equitable’ maintenance by the court. In the case of 7Re Debenham (1986), the court decided that the disabilities of the individual would thwart her from gaining proper employment and thus, a moral obligation arose and the court found it equitable to endow the child provisions. The 58- year-old adult daughter of the deceased sought claim from the court and was awarded provisions as a consequence of her parents’ moral obligations. The same judgements were specified in the case of 8Hanburry v Hanburry (1999). In the case of 9Basham decd [1986], the applicant aided her mother and stepfather throughout her life. Although she received no compensation, it was clear to her that she would inherit her stepfather’s estate when he died. Her stepfather informed her that 10‘she would lose nothing’ as a result of her help to him but told her to leave the estate a few days before he passed away. Her mother died shortly before that and her stepfather died intestate (Borkowski 2002). The applicant sought claims and the judged declared that she should inherit the whole estate of her stepfather. However, there are some cases decided by the court, which some experts assert as ‘unfair’ or inconsistent with the previous decision handed down by the courts. In Re Coventry (1979), the court refused the claim of an adult son who gave up employment in order to take care of his ailing father. When his father died, he became homeless and thereby sought claims under the Inheritance Act to be provided ‘maintenance’ out of his deceased father’s estate. The court decided against the claim as the applicant was ‘able bodied’ and the court cannot ‘disturb’ his father’s estate. This inconsistency is further illustrated in the case of Re Jennings (1994)11 when a claimant sought provisions from his father’s estate as his father deserted him when he was just two years old. His father failed to provide for him until he turned 40. The court denied the claims and asserted that the deceased had no moral obligation to provide for employed and adult individuals. The court refused to grant him provisions. Similarly, a ‘questionable’ judgement was declared by the court in the case of Re Collins (1990)12. When the parent died leaving two children, an 8-year-old boy and a 17-year-old girl, the boy was adopted while the girl remained unemployed. The children petitioned for provisions under the Inheritance Act of 1975 but the court ruled that only the 17 year old girl should be given entitlement provision as the 8 year old boy was put into adoption. The judgment of the court contended that the boy no longer entitled to a share of the estate of the deceased because someone has assumed responsibility over his care and provisions, removing him from the coverage of the Inheritance Act of 1975. Still, other law experts contend that this is an equitable verdict as this has legal precedence. Moreover, the decision only implies that the court also carefully scrutinizes the property that claimants ‘will likely to have in the future’ and in the case of the aforementioned claimant, the court has made proper considerations of the gravity of the appeal before it made its verdict. On the other hand, current cases with regards the invocations of the Inheritance Law only seem to confuse scholars and students interested in the study of Family and Property Law. In Re Abram’s (1997)13 case, the claimant suffered business losses and the court readily grant the application of the claimant for maintenance as the applicant worked for the deceased’s business for a long period of time before establishing his own business. While he was employed by his family, he received inconsiderable compensation. Moreover, the case of Espinosa v Bourke (1999)14 has a legal precedence on the case of Re Pearce (1988)15 in which the claimants received compensation from the deceased’s estate as a result of an obligation. The parent of the applicant in the case of Pearce promised the claimant that the farm would be given to him when the time comes. A similar verdict was put forward in the case of Re Goodchild (1997)16 in which the court ruled that even though the surviving parent can modify his will based on his whims, a promise made to the child that he would inherit the estate resulted to a moral obligation on the part of the testator to provide part of his estate to the claimant. The arguments in this case, depended solely and centrally on the promise made by the parent to the child. Thus, it can be observed from the aforementioned cases that the court exercise prudence and equitability in its treatment and protection of the interests of the children of deceased testators. Although the court rulings may seem detrimental to the children making the claims, a proper evaluation of these rulings is necessary in order to understand the decision of the court. As in the case of Re Jennings v National Westminster Bank [1994, filed under The Court of Appeals, it is apparent that in order for the claim to be given consideration by the court, the obligation to maintain should exist at the time of the testator’s death (Gibson 2006). It is not always clear nor easy to surmise whether a particular occurrence should be deemed as generating an obligation as stipulated in 3(1)(d) of the statute or considered as ‘any other relevant matter’ provided in section 3(1)(g). There are, of course, clear events as when the testator has assured the claimant, or at times, not particularly the claimant, that he would leave parts of his estate to the applicant. These promises were the bases of the court decisions in Goodchild v Goodchild [1997] and Espinosa v Bourke [1999 where the court asserted that an obligation has been created (Gibson 2006) and thus provisions should be awarded to the petitioners. However, it is likewise significant to remember that the claims which summon the Inheritance statute of 1975 should only be made by the children who were left out of the will, or those individuals who felt that the inheritance endowed is inequitable. Discretion on this matter lies in the hands of the testators who should, before their time of deaths, make sure that not one of his beneficiaries and loved ones are excluded. If there are exclusions in the will of the testator, it can be said that the one who drafted the will may have surmised that the court has already been afforded discretions under the Inheritance (Provision for Family and Dependants) Act 1975. The Act becomes an entirely divergent issue if the deceased testator fails to grant reasonable provisions for the maintenance of the claimant. Although the children of the deceased testator are categorised as individuals who are entitled to make a claim under section 2 of the Act, the claimant must prove that the will or intestacy does not provide equitable conditions for their maintenance (Thomas et al 2006). Furthermore, in majority of the cases mentioned, claimants who were not included in the will, freely acquired or petitioned for provisions under the statute. The law likewise does not limit persons who seek redress if they feel they are not afforded equal treatment from the deceased. On the contrary, the English Law provides that individuals are free to either dispose of their assets any way they want, or make claims to seek provisions from the deceased testator. In addition, although this law is very conducive to litigation, according to Borkowski (2002), the significance of the 1975 statute cannot be gauged alone by how much controversy it generated or how much litigation the law has produced as the litigations caused by the Inheritance Act is not as immense as what many feared. Borkowski (2002) observed that just the probability of a claim presented under the Inheritance Act is already an important factor for the initiation of negotiation in various disputes over claims, and most of these, were never actually filed at the courts (Borkowski 2002). Many legal practitioners in England also contend that the current law of wills, and the aforementioned statute are founded and should be founded on the three principles: freedom, efficiency and fairness (Kreling 1991). The principle of efficiency according to Paul Kreling, asserts that no matter what the desires of the testator are for his property, it should be entrusted and delegated to those who can utilise it in the most competent way. Thus the principles as stated in the provisions of the Inheritance Act of 1975 bear these contentions. Moreover, Klering argues that the principles of the common law strengthen the ‘sanctity of wills’ ‘except where other principles are stronger’ as for instance, the beneficiary takes the life of the testator, the claimant is not allowed any provisions as the principle ‘no man shall profit from his own wrong (Re Crippen) should always prevail. Except that, there are instances in which the statutes declare that the testators must include ‘fairness’ into their wills, or the stipulations provided in the wills, may be modified after the death of the testators based on the whims of ‘certain categories of people’ (Klering 1991). This policy is depicted in the Inheritance (Provision for Family and Dependents) Act 1975 - except that there are those who fear, that the decisions on how the estate of the deceased testators maybe delegated or allocated by the judge who has the sole discretionary judgements over the case, may not be considered as astute. It is, in fact, difficult to make fair and judicious decisions with regards property division as no one has the ability to perfectly foresee great prospects of investment resulting from the proper allocation of the testator’s estates (Klering 1991). However, Klering also observed that the most of the cases with regards the Act are often employed to get back to or avenge at other members of the family for the purpose of marring the reputation of the deceased. There are also some instances when the testator specifies why a certain member of the family is not named in the will. Therefore, it cannot be said that the rights of individuals including the children of the testators are not protected nor secured under the current law. Since any individual who seek provisions out of the deceased testator’s assets can easily invoke the statute, we can conclude that the law is not restrictive in its scope or limited in its treatment of individuals. The statute merely tries to protect the estates and the rights of the deceased, the rights of the claimants and the rights of the beneficiaries. Whenever a claimant appears, it can be observed that the law withholds the estates of the deceased and whenever the defendant beneficiary handles a claimant petitions for provisions, the beneficiary faces the same costs and risks. In fact, it is easy to assert that the effect of the claim is more detrimental to the defendant beneficiary because the litigation results to the freezing of the deceased assets and estates. A claim against the estate of the deceased means a delay in appropriating provisions to the testator’s beneficiaries. Moreover the cost of the claim or the litigation could be deducted from the estate’s value, which will leave the chosen beneficiaries with lesser allocation (Cretney 1997). The conclusion we can glean from this is that, the testator’s children and ‘other individuals’ covered by the statute, whether listed on the will or not, and their interests are bestowed adequate, equitable and just protection and consideration under the Inheritance Act of 1975. These principles are fortified based on the provisions of the statute and the court’s previous judgements on the various cases presented before them. This equitability on the treatment of individuals in every aspect of the law is not only a British ideal but it is also a way of life. WORKS CITED Borkowski , A. (2002). Textbook on Succession. London, England: Oxford University Press. Cretney, Michael, S., & Masson, J.M. (1997). Principles of Family Law. London: Sweet and Maxwell. Gibson, K. (2006).The Inheritance (Provision for Family and Dependants) Act 1975. Family Law Journal . 5, 3-7. Herring, J (2001). Family Law: Issues, Debates, Policy . London, England: Willan Publishing. Kreling , P. (1991).In Praise of Common Law and Equity and Against Statute Law. Libertarian Alliance Journal. 2, 23-27. Parry, Kerridge. R. and Clark. (1997) The Law of Succession. 11th Edition. Sweet and Maxwell. Thomas, M. (2006). Blackstone’s Statutes: Property Law. London, England: Oxford University Press. Cases 1. Snapes v Aram (1998) Times 8/5/98 CA 2. Re Conventry (1979) 3 All ER 815 CA 3. Re Hancock deceased (1998) 2 FLR 346 CA 4. Re Collins (1990) 2 All ER 47 5. Re Debenham (1986) 1 FLR 404 6. Hanburry v Hanburry (1999) 2 FLR 255 7. Jennings (1994) 3 All ER 27, CA 8. Re Dennis (1981) 2 All ER 140 9. Re Abram (1997) 2 FCR 85 10. Re Pearce (1988) 2 FLR 705 CA 11. Espinosa v Bourke (1999) 1 FLR 747 CA 12. Re Goodchild (1997) 3 All ER 63 CA 13. White v White [2001] Laws and Statutes Inheritance (Provision for Family and Dependants) Act 1975 Family Law Act 1996 Law of Property Act 1989 Read More