To what extent is there testamentary freedom in England and Wales?

Comparison with Scottish Succession Law

Bachelor Thesis, 2018

33 Pages, Grade: 71%


Table of Contents



3.1 Capacity:
3.2 Intention:
3.3 Formalities:
3.4 Other Factors that Affect Testamentary Freedom:


5.1 Legal Rights
5.2 Immorality
5.3 Disposal of the Corpse




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.

Chapter 1 - Introduction

The law of succession deals with methods of inheritance and the disposal of assets upon death, while setting out the criteria as to how a will should be constructed. A will is defined by R. Jenning as “an instrument by which a person makes a disposition of his(/her) property to take effect after his(/her) decease and which is in its own nature ambulatory and revocable during his(/her) life”1. This explains the characteristics of a will and that it will only come into effect once the testator/trix has passed away and that at any time during their life, they are able to either change the legacies or revoke it completely. A will does not need to be restricted only to property which can be disposed of, moreover have instructions that can assign executors or someone to look after minors that act as guardians. However, as seen in the case of Re Berger2, it states that unless there are provisions that dispose of property, a will would not be admissible to probate3.

The jurisdiction of England and Wales has had complete testamentary freedom since the Wills Act 18374, which means that any testator/trix has no strict restrictions as to who must inherit what property and they are free to dispose of their assets to whomever they wish. This encourages one to take power over their ownership of property and do what they think is best with it and this freedom can also be referred to a testator/trix having “uncontrollable liberty”5 over the disposal of their property. However, with this much freedom that one possesses over their will, the common law comes into effect and with the help of legislation and case law, which instruct the ways to constitute a valid will. The aim of this dissertation is to analyse any restrictions that fall upon a testator/trix and whether those restrictions suffice or should be strengthened.

This dissertation will firstly explain a brief history of testamentary freedom and how it had come into effect. Following that there will be an analysis of the criteria that must be followed in order to validate a will, such as having the mental capacity, if there is sufficient intention and the formalities to construct a will have been satisfied. These are elements that help to standardise the consistency of the construction of wills and create an efficient way to negate any unintended or misjudged provisions in the will. Other factors also contribute to the restrictions to prevent any unethical or immoral activities, which not only includes errors made by the testator/trix, but another individual committing any breaches of public policy, such as benefitting from a crime, which also includes murdering testator/trix's in order to receive inheritance; or manipulating or misleading the testator/trix into something which they were not initially willing to do, also commonly known as undue influence. These are conflicting issues that arise every day and are dealt with in their own unique manner, and as the dissertation proceeds, these elements will be further discussed in more detail.

One of the biggest restrictions that is recognised today in the law of succession, which will also be heavily focused on in this dissertation, is the Inheritance (Provisions for Family and Dependants) Act 1975, where a family member or dependant can claim under this provision to challenge the deceased's will. This also acts as the most conflicting issue which arises in relation to the freedom of testation, as it defeats the purpose of an individual exercising their rights to the disposal of their own assets. This issue will then lead to the comparison of a jurisdiction which runs on restricted testamentary freedom, which for this dissertation is Scotland, that exercises strict restrictions as to what provisions a testator/trix must follow in order to validate their will. With this comparison, there will be an analysis of whether testamentary freedom should be restricted or kept the way it is in England and Wales.

Chapter 2 - History of Testamentary Freedom

The history of succession in England and Wales in regards to testamentary freedom would be stretched out to the foundational respects to the Norman Conquest of England in 1066 AD. Even before there had been strict procedural rules in order to create a will validly, two fundamental elements that conflicted each other arose - one, that an individual has the right to nominate another person to have his/her property upon their death; and two, that a family member has the right to claim property of the deceased. These elements create a sense of juxtaposition and imbalance between the two concepts of “property” and “family”. As testamentary freedom was religiously followed, there had been misunderstandings about whether a testator/trix would be able to dispose of his/her property as they wish, or have an obligation to dispose of their property to their family.

Although there were stringent laws that applied to alienations inter vivos in relation to land, there was a different rule of law that applied to chattels, known as the Tripartite Principle6. References were made by Glanvil and Bracton and the Magna Charta7 about restricting dispositions made for chattels, by stating that the surviving spouse and issue had a mandatory right under this principle8. There were strict restrictions on the wishes of the testator/trix written in their last testament if there is a surviving spouse or issue. If there was both, a surviving spouse as well as issue, the estate would then be divided into three equal parts, which consisted of the “wife’s part”, the “bairn’s part” and the “dead’s part”9. Furthermore, the “dead’s part” is a section of their personal property that is directly given to the Church pro salute anime10. As the years passed, parts of the rule had slowly disintegrated and the mandatory sections or parts of the testator/trix’s property that belonged to the bairn was not practiced, barring certain localised customs11. However, the rule of Tripartite continued under the basis of intestate succession only until 185912 An important year that marked a drastic change to succession law was in 1857, when there was a transfer of jurisdiction from the ecclesiastical courts to the Court of Probate13. Although the Wills Act 1837 was introduced 20 years earlier, reforms had been made by the Court of Probate Act, which made it a requirement under the Wills Act 1837 that a will must be in writing14.

Chapter 3 - Present Position on Testamentary Freedom

Freedom of testation in England and Wales has developed more since the beginning of its existence. When a testator/trix wishes to construct a will, they must satisfy certain criteria in order to validate it and enjoy testamentary freedom. Thus in the present day absolute freedom of testation cannot be guaranteed by a legal system15, which determines the restrictions that the testator/trix are bound by. As Rebecca Probert stated that “a will may be defined as a revocable ambulatory disposition of the maker's property which is intended to take effect upon death”16, which was initially approved by Lord Oliver in the judgment of Baird v Baird17. The main elements that govern the validity of wills is for the testator/trix to have the capacity and intention, and furthermore, satisfy the formalities of constructing a will18. These also act as restrictions that fall upon a testator/trix if they have not abided by the criteria. Other factors such as undue influence and the area of public policy, which deals with illegal bequests and the forfeiture rule, also play a very important role in understanding that testamentary freedom is limited if any illegal activity had taken place in order to construct a testament.

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.

Cockburn CJ’s statement made as part of the judgment for Banks v Goodfellow25 resonates across the English and Welsh jurisdiction and sets out fundamental aspects that need to be looked into while considering the mental competence of a testator/trix. In 2005, the Mental Capacity Act had come into effect, which also contains other ways for assessing not only the mental competence of the testator/trix, but also other areas of the law. This way for assessing mental competence is comparable to the Banks v Goodfellow test in certain ways; however, in the case of Re Walker26, a distinction was made between the two tests, one being case law and the other being legislation. It was held in this case that the legislative test was not intended for the purposes of testation and that “the correct and only test for testamentary capacity, where what is in issue is the validity of the will executed by the deceased, is the common law test set out in Banks”27.

The Banks v Goodfellow test consists of four criteria that would be followed in order to assess the mental capacity of a testator/trix and they are as follows:

“The testator/trix must understand the nature of testation” - this widely suggests that the testator/trix would need to be clear about what testation means and that they are willingly engaging in a testamentary act and that their wishes will only take effect upon the testator/trix’s death. Another understanding that must take place is that the testator/trix does not require to construct a will “with the eye of a lawyer”28.

"They must understand what exact property would be disposed” - in the case of Waters v Waters29, Coleridge J stated that the testator/trix “ought to know generally the state of his(/her) property and what it consists of’30. It is also said that the level of knowledge of the testator/trix's property would solely depend on the circumstances of their estate and how vast it may be.

"They must identify and understand the subjects that will receive the bounty” - This would suggest that the testator/trix must be cautious of certain family members that may have a moral claim on their estate. This was also seen in the case of Hardwood v Baker31 where a will was deemed to be invalid as the testator had excluded some of his relatives and disposed of his entire estate to his wife only. One of the fundamental things to know about a testator/trix is that whether they were capable of recollecting who their family members were and understanding “their respective claims upon his(/her) regard and bounty, and of deliberately forming an intelligent purpose of excluding them from any share of his(/her) property”32. This is done to avoid any further complications in regards to the testament, such as children or dependants that could claim under the Inheritance (Provisions for Family and Dependants) Act 1975 if the provisions under the testator/trix's will had no valid reasoning for excluding them out of their will.

"The manner of distribution” - This requirement suggests that nothing should influence the reasoning behind the testator/trix's wishes, which could include mental illnesses, such as insane delusions or physical illnesses. This was seen in the case of Sharp v Adam33 where the testator had suffered from severely debilitating progressive multiple sclerosis34, which effected his testamentary capacity. The “manner” described the way that a testator/trix has conducted their will and that nothing was influencing their wishes.

Mental competence is one of the biggest restrictions that fall upon a testator/trix but it is the time at which they had constructed the will is crucial. If the testator/trix had suffered from mental illnesses before they constructed their will, it would only be deemed valid if the testator/trix was lucid and fully aware of what they were doing whilst making their will. This was also seen in the Estate of Walker35 where three doctors had confirmed that the testatrix was able to construct a will, as she was “a shrewd, clever woman”36 and was lucid at the time of creating the will37. The Banks test creates a more efficient way of creating a will and the provisions are clear for everyone to follow and seem reasonable to continue using this test to determine one's real mental competence.

3.2 Intention:

Once a testator/trix has satisfied the requirements for assessing capacity and mental competence, another fundamental factor needs to be assessed, which is the intention of the testator/trix, also known as animus testandi. There could be many factors that could influence the intention of the testator/trix even if they are fully aware of their actions and have full mental capacity. The case of d’Avery v Avery38 showcases the main differences between having capacity and having animus testandi. The testator in this case suffered from a stroke and lost the ability to communicate with others, and had his will constructed by his dance partner at the time. Although in this case the testator had full mental capacity and was fully aware of what he was doing, he was not fully aware of the provisions in his testament, which would mean that there was no intention of the provisions being in the will. The Court of Probate then declared this will to be invalid as the testator had no intention that correlated with the provisions of his will. This was further seen in the judgment of the case Strum v Fuller39 and approved in the case of Marley v Rawlings40, it was stated that a will “must truly represent the testator(/trix’s) testamentary intentions”41.

Situations may arise where a testator/trix is not aware that they are making a will or that they do not have the knowledge of what the criteria are to construct a valid will, but they do have the intention of disposing their assets to whomever they wish to. In instances such as these, the wishes of the testator/trix will be sufficient enough to be deemed valid, which is predominantly seen in privileged wills. In Re Stable42, the testator had not been correctly informed by his solicitor that although he is under aged to construct a regular will, due to him being part of armed forces, he was eligible to make a privileged will (as discussed in 3.1). Without this knowledge, he had not formally made a will but had told his fiancée, in the presence of another friend, that in the event of him losing his life, while being at work, he intends that everything of his will be his fiancée's43. It was held in this case that there was sufficient intention from the testator and that the provision was valid.

However, comparing the above with the judgment made in In the Estate of Knibbs44 where it was seen that there was not sufficient intention seen by the testator, and the reason behind this distinction lies within the demonstration of showcasing intention and the manner that a legacy is constructed. In the instance of Re Knibbs, the testator was mentioning to another person who was not relevant to the will, who happened to be a barman, about a beneficiary; whereas in the case of Re Stable, the testator was directly talking to the beneficiary with the presence of a witness. This would also act as a strict restriction against a testator/trix, where they must provide that they were not just expressing their wishes by simply exchanging family information, but that they must imply conveyance of a guaranteed wish that their assets must be disposed to whomever they have implied it to be to. As seen in the cases stated above, it is wise to have such restrictions upon intention and it appropriately put into place as it still provides testamentary freedom and this should not be further restricted.

3.3 Formalities:

Once a testator/trix has satisfied and proved that they have sufficient mental capacity and have intention for creating every legacy in their will, they must then follow the formalities set out in s. 9 of the Wills Act 1837 (as amended). This provision provides the rules to construct a will, such as the will must be done in writing and must be witnessed by two or more people in the presence of the testator/trix. This section states that any will must be done in writing, but there is no specification as to what writing instrument should be used and what on. There are instances where a testator/trix have written their testament using pencil (In the Goods of Adam45 ), which are sometimes valid only if there is strong evidence proving the intention of those legacies. However, there are chances of certain legacies not being valid if the will is written half in pen and the other in pencil, as there is a presumption that the part written in pencil is only a draft.

The directions given by this section provide details of how a will should be constructed; however, it does not specify certain aspects, which could be misconstrued innocently and still invalidate a will. The purpose for this section is essential but should have more certainty in relation to how a will must be written, as to unify the construction of wills and minimise any mistakes that could invalidate a will.

3.4 Other Factors that Affect Testamentary Freedom:

Although the requirements that are needed to create a valid will also impose some restrictions upon the testator/trix, there are other elements that apply strict restriction on a testator/trix. As discussed previously (3.1), there are other factors that contribute to the restrictions - Rule 40a of the Contentious Probate Rules 1862 (as amended in 1865)46. This rule broadly explains that there are four pleas that could be used if an individual would like to challenge a testator/trix's testamentary freedom - lack of capacity, undue influence, fraud, and lack of knowledge and approval47.


1 R. Jenning, Jarman on Wills, 8th edn, (1951), vol. 1, p. 26

2 Re Berger 1990 Ch 118

3 Brian Sloan and J. A Borkowski, Borkowski's Law of Succession (3rd edn, Oxford University Press 2017), 45

4 Wills Act 1837

5 Locke, Civil Government, Bk 11,2

6 Joseph Dainow, 'Limitations On Testamentary Freedom in England' (1940) 25 Cornell Law Review

7 ibid

8 Glanvil, VIL 5; Bracton, ff. 60b, 61; Magna Charta, §26

9 Joseph Dainow, 'Limitations On Testamentary Freedom in England' (1940) 25 Cornell Law Review

10 meaning, safety ofthe soul

11 Joseph Dainow, 'Limitations On Testamentary Freedom in England' (1940) 25 Cornell Law Review

12 Holdsworth, History 552

13 Rebecca Probert, Family Law in England and Wales (Wolters Kluwer Law & Business 2012).

14 Wills Act 1837, s. 9(i)

15 Brian Sloan and J. A Borkowski, Borkowski's Law of Succession (3rd edn, Oxford University Press 2017).

16 Rebecca Probert, Family Law in England and Wales (Wolters Kluwer Law & Business 2012), 208

17 Baird v Baird (1990) 2 AC 548.

18 ibid, 70

19 Wills Act 1837, s. 7 (as amended by Family Law Reform Act 1969, s. 1)

20 Brian Sloan and J. A Borkowski, Borkowski's Law of Succession (3rd edn, Oxford University Press 2017), 71

21 Kenward vAdams 1975 CLY 3591

22 HoffvAtherton 2004 EWCACiv 1554

23 Brian Sloan and J. A Borkowski, Borkowski's Law of Succession (3rd edn, Oxford University Press 2017), 71

24 Banks v Goodfellow (1870) LR 5 QB 549

25 ibid, 565

26 Re Walker 2014 EWCH 71 (Ch)

27 ibid, para 50

28 Brian Sloan and J. A Borkowski, Borkowski's Law of Succession (3rd edn, Oxford University Press 2017), 72

29 Waters v Waters (1848) 2 De G & Sm 591; 64 ER 263

30 ibid, 279

31 Hardwood v Baker (1849) 3 Moo PC 282

32 ibid, 120

33 Sharp v Adam 2005 EWCH I860 (Ch)

34 Brian Sloan and J. A Borkowski, Borkowski's Law of Succession (3rd edn, Oxford University Press 2017), 73

35 Estate of Walker (1912) 28 TLR 466

36 ibid, para 23

37 Brian Sloan and J. A Borkowski, Borkowski's Law of Succession (3rd edn, Oxford University Press 2017), 77

38 d'Avery v Avery 2001 WTLR 2T1

39 Strum v Fuller 2001 EWCA Civ 1879, para. 59

40 Marley v Rawlings 2014 UKSC 2

41 Brian Sloan and J. A Borkowski, Borkowski's Law of Succession (3rd edn, Oxford University Press 2017), 87

42 Re Stable 1919 P 7

43 Brian Sloan and J. A Borkowski, Borkowski's Law of Succession (3rd edn, Oxford University Press 2017), 85

44 In the Estate of Knibbs 1962 1WLR 852

45 In the Goods of Adam (1872) LR P & D 367

46 ibid,CL)UK317

47 Contentious Probate Rules 40a: This arises when a claim has been put against a testator's or testatrix's will.

Excerpt out of 33 pages


To what extent is there testamentary freedom in England and Wales?
Comparison with Scottish Succession Law
Anglia Ruskin University
LLB (Hons)
Catalog Number
ISBN (eBook)
ISBN (Book)
england, wales, comparison, scottish, succession
Quote paper
Mariam Shakil (Author), 2018, To what extent is there testamentary freedom in England and Wales?, Munich, GRIN Verlag,


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