Kaur v Singh – Forced Heirship in England and Wales?

Background

The claimant, Mrs Kaur, was married to her husband, Mr Singh for 66 years. According to his will, he left the entirety of his estate worth £1,990,000 to his male lineage, effectively excluding his wife and four daughters.

Mrs Kaur brought an Inheritance (Provision for Family and Dependents) Act 1975 claim (a ‘1975 Act claim’), seeking half of her husband’s estate due to financial strain and health concerns.

The court ruled that reasonable financial provision had not been made for Mrs Kaur and Mr Justice Peele highlighted that “after a marriage of 66 years, to which she made a full and equal contribution, and during which all the assets accrued, she is left with next to nothing.”

Although the Family Courts were quick to ensure that Mrs Kaur was not disinherited by her husband’s will, it leaves us to contemplate the benefits of testamentary freedom.

Testamentary Freedom vs Forced Heirship

In England and Wales[CM1] , you can decide who will benefit from your estate when you pass way. This is referred to as the freedom of testamentary disposition (or simply testamentary freedom) and at first glance it suggests that British nationals living in England and Wales enjoy total freedom to divide their estate freely on their deaths, and as a consequence can disinherit family members.

Kaur v Singh and countless other cases prove the contrary, with the family provision rules allowing disinherited family members to bring a claim against the deceased’s estate for a financial award. This acts as a safety net to ensure that family members who relied upon the deceased for financial aid are not left destitute or homeless following the deceased’s death.

Generally, the process to bring such a claim requires a formal hearing, with the evidence being weighed up by the Court, which can be very time consuming, particularly if the lack of financial provision to the applicant came unexpectedly. Why then is there no regime of forced heirship in England and Wales?

Forced heirship as an alternative?

The principle of testamentary freedom differs significantly from the forced heirship rules found across the majority of Europe. Forced heirship laws dictate that certain family members, usually the spouse and children, are legally entitled to a minimum share of an individual’s estate on their death.

The idea of forced heirship feels very foreign to many British clients, who feel that it is unfair if they have to leave their assets to children who have acted badly towards them, or become estranged. In addition to this the majority of married British couples wish to leave all their assets to their spouse when the first of them dies, rather than to their children.

In fact, many British individuals with foreign assets seek legal advice to prevent the rules of forced heirship from applying to the succession of their foreign estate.

Therefore, given the strength of feeling about forced heirship and testamentary freedom, it is highly unlikely that there will be a move towards it in England and Wales.

That said, individuals wishing to disinherit close family members and dependents should be aware that the terms of their Will may be overturned by the Courts, if a 1975 Act claim is made against their estate .

Kaur v Singh is a textbook example of an 1975 Act claim, but significant in one particular aspect. Namely, that the claim was resolved in an application hearing without a need for a full-blown trial. This development may be interpreted as a middle ground between testamentary freedom and forced heirship by simplifying the process of challenging a succession.