A testament is considered to be one of the most fundamental actions that an individual carries out, having followed the criteria to constitute valid legacies. The assumption, in England and Wales, is that the provisions will be adhered to, as they enjoy testamentary freedom. This dissertation is based on the power that one possesses over their assets and the amount of freedom they have to be able to dispose it on their death. Absolute testamentary freedom is not seen in any legal system, as it would constitute many issues. Thus, evaluating the present restrictions that occur in relation to the construction and validation of a testament, which could arise before or after the death of a testator/trix, by using Blackletter Law as the method of gaining information. An overall evaluation will consist of a brief history of testamentary freedom and how the legal system has evolved over time, with the help of reforms of legislation and case law, while discussing any further restrictions that should be made. The Scottish jurisdiction is used to compare the differences between having limitations on testamentary freedom, such as having fixed family rights over assets. One of the main focuses of this dissertation is dealing with one of the most controversial areas of Succession law, being the Inheritance (Provisions for Family and Dependants) Act 1975 and discussing the possibility of making it more stringent to be able to make a claim under this Act. As freedom of testation acts as basic right an individual possesses, this dissertation will conclude that while the present restrictions are set into place, they are reasonable and should not be further restricted.
Table of Contents
CHAPTER 1 – INTRODUCTION
CHAPTER 2 – HISTORY OF TESTAMENTARY FREEDOM
CHAPTER 3 – PRESENT POSITION ON TESTAMENTARY FREEDOM
3.1 CAPACITY:
3.2 INTENTION:
3.3 FORMALITIES:
3.4 OTHER FACTORS THAT AFFECT TESTAMENTARY FREEDOM:
CHAPTER 4 – INHERITANCE (PROVISIONS FOR FAMILY AND DEPENDANTS) ACT 1975
CHAPTER 5 – COMPARISON OF JURISDICTIONS: SCOTLAND
5.1 LEGAL RIGHTS:
5.2 IMMORALITY:
5.3 DISPOSAL OF THE CORPSE:
CHAPTER 6 – CONCLUSION
Research Objectives and Themes
This dissertation examines the extent of testamentary freedom in England and Wales, specifically evaluating whether existing legal restrictions are sufficient or if further limitations should be introduced. By comparing the English legal framework with the Scottish jurisdiction, which imposes stricter mandates regarding family inheritance, the research explores the tension between an individual's right to dispose of their assets and the potential for unfair disinheritance of dependants.
- Evolution of testamentary freedom from historical roots to current legislation.
- Core requirements for a valid will: capacity, intention, and formal execution.
- The impact and controversy surrounding the Inheritance (Provisions for Family and Dependants) Act 1975.
- Comparative analysis of fixed family rights in Scottish succession law.
- Public policy considerations, including undue influence, fraud, and forfeiture rules.
Excerpt from the Dissertation
3.1 Capacity:
Capacity refers to the level of competence that an individual has to be able to produce a will. This branches out into two requirements, one with which concerns age and the other concerning the mental capacity that a testator/trix possess in order to make a valid will.
Age is an important factor to determine competence and the Family Law Reform Act 1969 had revisited s. 7 of the Wills Act 1837, which states that “no will made by any person under the age of 18 years shall be valid”19. Although an exception does arise in relation to the age restriction, which concerns individuals that are in the military or are at sea (armed forces), also known as privileged testators/trix and that their age would not act as a restriction and that they are able to construct a will before they are 18 years old20. They are also allowed to create an oral will in these circumstances. One of the leading cases that relates to age restriction is Kenward v Adams21 and this case provides a golden rule, which states that where a testator/trix is old and infirmed, their will must be witnessed and approved by a medical practitioner who can have a record of examinations and medical findings.
Once having satisfied the age requirement, the mental capacity of the testator/trix must also be examined and validated. In the judgment of Hoff v Atherton22, it was stated that “the court is concerned with capacity to understand relevant matters rather than actual understanding”23. The relevant matters would concern the last testament of the testator/trix and their wishes for disposal of their assets and whether or not they were fully aware of these wishes. The case of Banks v Goodfellow24 sets out criteria that should be followed in order to satisfy the mental competence test.
Summary of Chapters
CHAPTER 1 – INTRODUCTION: This chapter introduces the definition of a will and the concept of testamentary freedom, establishing the objective to analyze existing legal restrictions.
CHAPTER 2 – HISTORY OF TESTAMENTARY FREEDOM: This section provides a historical overview of succession law in England and Wales, tracing its development from the Norman Conquest and the evolution of the Tripartite Rule.
CHAPTER 3 – PRESENT POSITION ON TESTAMENTARY FREEDOM: This chapter analyzes the specific legal criteria required to validate a will, including capacity, intention, formalities, and the impact of public policy and undue influence.
CHAPTER 4 – INHERITANCE (PROVISIONS FOR FAMILY AND DEPENDANTS) ACT 1975: This chapter focuses on the most significant restriction on testamentary freedom, discussing the mechanisms through which family members can challenge a will.
CHAPTER 5 – COMPARISON OF JURISDICTIONS: SCOTLAND: This section compares the English model with Scotland, highlighting differences in fixed family rights, immorality, and corpse disposal rules.
CHAPTER 6 – CONCLUSION: The final chapter summarizes the findings, arguing that while current restrictions are reasonable, further clarification on formal requirements and inheritance claims is necessary.
Keywords
Testamentary freedom, Succession law, Wills Act 1837, Inheritance Act 1975, Testamentary capacity, Animus testandi, Scottish succession, Fixed family rights, Public policy, Undue influence, Forfeiture rule, Probate, Beneficiaries, Legal competence, Estate planning.
Frequently Asked Questions
What is the core focus of this dissertation?
The dissertation explores the scope of testamentary freedom in England and Wales and whether the current legal limitations strike a fair balance between an individual's right to dispose of property and their moral obligations to family.
What are the central themes of the research?
Key themes include the historical evolution of inheritance law, the validity requirements for wills (capacity, intention, formalities), the role of the 1975 Act in challenging wills, and a comparative look at the Scottish legal system.
What is the primary research question?
The research asks to what extent testamentary freedom currently exists and whether there is a need for the government to introduce stricter legal limitations to protect family dependants.
Which legal methodology is employed?
The work utilizes "Blackletter Law" as its primary method, analyzing statutes, relevant judicial precedents, and legal reforms to determine the current state and effectiveness of the law.
What does the main body cover?
The main body systematically breaks down the requirements for creating a valid will, investigates challenges such as fraud and undue influence, examines the specific impact of the Inheritance (Provisions for Family and Dependants) Act 1975, and contrasts these with the Scottish jurisdiction.
How can one define the most relevant keywords for this paper?
The keywords center on the fundamental concepts of estate law, such as "testamentary freedom," "succession," and "capacity," alongside specific legislation like the "Wills Act 1837" and "Inheritance Act 1975."
How does the Scottish approach to succession differ from the English system?
Unlike England and Wales, where freedom is largely unrestricted, Scotland maintains "legal rights" that mandate the distribution of moveable assets to surviving spouses and children, regardless of the testator's wishes.
What is the significance of the case "Ilott v The Blue Cross"?
This case is a landmark example illustrating the conflict between a testator's right to disinherit an adult child and the court's power under the 1975 Act to provide reasonable maintenance to a financially dependent family member.
- Quote paper
- Mariam Shakil (Author), 2018, To what extent is there testamentary freedom in England and Wales?, Munich, GRIN Verlag, https://www.grin.com/document/932838
