Testamentary freedom

Much has been said about the advantages of making a will. A will allows a person to determine what happens to their property and how their affairs are to be tidied up after their death. One of the reasons usually put forward to encourage people to make a will is that if they die intestate (without a will), they may find themselves turning in their grave when their property goes to someone whom they would never have wanted to benefit from their estate.

People use their wills to make a statement, leaving gifts to relations, friends and causes dear to their heart. In general, a person has the freedom to distribute their property as they wish. This freedom was expressed in the 19th century English case of Banks v Goodfellow ([1870] 5 LR QB 549). Cockburn J. stated:

“Yet it is clear that, though the law leaves to the owner of property absolute freedom in this ultimate disposal of that of which he is enabled to dispose, a moral responsibility of no ordinary importance attaches to the exercise of the right thus given…. The English law leaves everything to the unfettered discretion of the testator, on the assumption that, though in some instances, caprice or passion, or the power of new ties, or artful contrivance, or sinister influence, may lead to the neglect of claims that ought to be attended to, yet, the instincts, affections, and common sentiments of mankind may be safely trusted to secure, on the whole, a better disposition of the property of the dead, and one more accurately adjusted to the requirements of each particular case, than could be obtained through a distribution prescribed by the stereotyped and inflexible rules of the general law.”

Basically, the law will not dictate to you how to dispose of your property. If, like William Shakespeare, you want to leave only your second best bed to your wife, then so be it. Well, as you can imagine, this kind of freedom led to some bizarre dispositions and the law had to step in to ensure, at least, that relations, especially spouses and children are not hard done by the sort of “caprice or passion” described above. Different jurisdictions have different laws to address this.

In Nigeria, apart from statutory law, customary law and Islamic law can limit a person’s testamentary freedom. The Wills laws of some states like the English Inheritance (Provision for Family and Dependents) Act 1975 provide that a testator must make reasonable financial provision for members of their immediate family. For instance, section 2 (1) of the Wills Law of Lagos State provides that:

“… where a person dies and is survived by any of the following persons – (a) the wife or wives or husband of the deceased; and (b) a child or children of the deceased – that person or those persons may apply to the court for an order on the ground that the disposition of the deceased estate effected by the will is not such to make reasonable financial provision for the applicant.”

Section 2 (2) defines “reasonable financial provision” as “… such financial provision as it would be reasonable in all the circumstances of the case for husband or wife or wives to receive, whether or not that provision is required for the applicant’s maintenance.”Those eligible to apply under the section have 6 months from the grant of probate to do so.

In the English case of Re Coventry, deceased [1980] Ch., Goff LJ stated that, “[w]hat is proper maintenance must in all cases depend upon all the facts and circumstances of the particular case being considered at the time, but I think it is clear on the one hand that one must not put too limited a meaning on it; it does not mean just enough to enable a person to get by; on the other hand, it does not mean anything which may be regarded as reasonably desirable for his general benefit or welfare.”

In the Republic of Ireland, surviving spouses are entitled to something called a legal right share. Section 111 of the Succession Act 1965 (1965 Act) provides that if the testator leaves a spouse and no children, the spouse gets one-half of the deceased’s estate. If the testator leaves a spouse and children then the spouse gets one-third of the estate. This legal right share takes priority over all other gifts should the spouse elect to take it. It automatically kicks in where the deceased spouse leaves nothing in his will to the surviving spouse. Under section 117 of the 1965 Act, children can apply to the court to make an order for proper provision for the child(ren) where the court finds that the testator/parent failed in his moral duty to make proper provision for the child in accordance with his means. Where a court finds such failure and varies the will to make provision for the child, the court’s order will affect every other gift but the legal right share of a surviving spouse.

In both the jurisdictions the courts have made orders providing for children who were either left out of their parents’ will or inadequately provided for even where the children were estranged from the testator such as in the recent case of Ilott v Mitson Michael Peter Lane& Ors.([2015] Fam Law 1196) where the testator left nothing to her only daughter who was living in poverty and instead gifted all her property to three charities. In that case the court made provision for the daughter to receive an amount that covered the purchase of the house she was living in with her family, and a lump sum to take care of her immediate needs.

The moral of the story is that while you may want to use your will to make a statement to your family members after you are gone, the courts may interfere with that statement to make sure that you have met your moral and other obligations according to statute, customary law or Islamic law.