Testamentary Freedom and Family Provision

Family provision legislation is often described as having restricted testamentary freedom; however, the principle of absolute testamentary freedom existed briefly in England between 1891 and the enactment of family provision legislation in 1938.

John Banks had mental health problems and had been recently discharged from an asylum after being confined for a number of years. He continued to suffer from some delusions; notably he believed that Featherstone Alexander was persecuting him.  John died leaving his estate to his niece, Margaret Goodfellow.  They had lived in the same house following the death of her mother, who was John’s sister.  Margaret died intestate aged 20 two years after John.

Margaret’s estate passed via the rules of intestacy to her half-brother, who was not related to John. John’s nephew (the son of his half brother) John Banks junior contested the will, on the grounds that his Uncle did not have testamentary capacity.

It was found that John’s will was valid, although he suffered from mental illness causing delusions, these delusions did not influence his decision as to who should benefit from his estate.

In this case the Court stated that testamentary freedom was always viewed within the context of a moral responsibility to provide for one’s family

 “though the law leaves to the owner of property absolute freedom in this ultimate disposal of that which he is thus enabled to dispose, a moral responsibility of no ordinary importance attaches to the exercise of the right thus given.”

When family provision legislation was enacted it supplanted this moral responsibility with a legal duty to provide for one’s family, to be activated by an application to the Supreme Court. Therefore family members have always had a moral entitlement to provision for financial needs, which has been formalized through legislation.

Earlier in the week we discussed the situation where a Will maker couldn’t prevent a family provision claim from succeeding even though by the terms of his Will it was his wish that his Sons profess the Protestant faith or they would be disinherited.

Similarly where a Will maker disinherited his non-practicing Catholic children; their failure to adopt their father’s religious beliefs would not preclude them from making a family provision claim.

Family provision legislation provides that the Supreme Court can alter, the Will makers intended gifts of their property; for provision from the deceased estate for the ‘maintenance, education and advancement in life’ of persons related by blood, close relationship and/or dependence.

It does not provide a forum for a person who believes they should have received a legacy under a will to seek it even though they have no need to be provided for under the estate.