Friday, 14 August 2015

Court Approved Grave Robbing

For over two thousand years, our Roman based legal system has accepted that after the payment of taxes and duties to the state, a person had the sole right to determine how the balance of their estate was disposed of after their death. Known as the “freedom of testamentary disposition” – the right to put your money where you like – it has been presumed as a safeguard against avaricious relatives by many Britons.

After all this position had been challenged countless times over the centuries in England, but had always been upheld in principal, with the odd tweak in favour of wives claims. In Scotland, there had always been some grounds for challenging a will if you were a surviving dependent. This is because we have slightly different legal systems, an inheritance from the Acts of Union with England in !707, and of course with Scotland heading for divorce from England inside the the next few years, they will no doubt diverge a lot more in the future.

Last Will Is Not Last Word Any More ....

The along came a woman on welfare benefits, who no doubt backed up by legal aid (in other words paid for by the taxpayer), challenged her mothers right to disinherit her and leave all of her money to animal charities, in a succession of legal courts:

  • 2002: The mother makes her last will and testament, with a covering letter to explain why she had disinherited her only daughter, referring to the fact that she had walked out of her home in 1978 to live with her boyfriend.
  • 2004: The mother dies aged 70.
  • 2007: Her daughter, challenges the will under the Inheritance (Provision for Family and Dependants) Act and is awarded £50,000 on the basis she had been "unreasonably" excluded by her mother. 
  • 2007: The daughter applies for a larger share of the money, a High Court judge reverses the decision to award it to her in the first place.
  • 2011: The Court of Appeal rules daughter is entitled to a share of the money after all.
  • 2014: Daughter loses another battle to get a larger share of the money at the High Court.
  • 2015 - The Court of Appeal, under Lady Justice Arden reverses last ruling, and awards daughter more than 3 times the first award at £164,000.

This decision to overturn the wisdom of judges over the centuries, is actually a terrible ruling. I am not even clear why Lady Justice Arden feels that the facts in 2015 are somehow different from 1975 or any other date?  There have been no new laws enacted which have changed all the inheritance rules, so why has the court decided that a couple of thousand years of the state not intruding on a persons last will and testament, was not legal?

This bad case law, if not overturned, will open the nightmare of hundreds maybe thousands of challenges to perfectly legal wills ..... a lawyers bonanza of course, but then lawyers always make money out of these scenarios, which is probably why they constantly overturn the will of parliament. This decision smacks awfully of court approved grave robbing.

But in any event, it appears that we are going to head towards the position in Europe, and much of the rest of the world, where a principle of “forced heirship” compels a portion of every estate, often half, to be distributed equally among the deceased’s close relatives.

Joan Crawford Disinherited Two Of Her Children

 A few famous will issues ....

  • Sheila Dibnah, widow of the TV steeplejack Fred Dibnah, made a claim under the same 1975 Act after she was written out of his estate just days before his death in 2004. She alleged that he was mentally fragile and under the influence of others when he disinherited her, but admitted she could not prove it. She and the estate eventually reached a settlement, so her case never reached the courts. 
  • Peter Ustinov, the actor wrote his in pencil and it was declared invalid after his death in 2004. His family have been battling over his will ever since.
  • Malcolm McLaren (of Sex Pistols fame) disinherited his son Joe Corré (founder of Agent Provocateur), who then challenged the will in a series of court actions which he ultimately lost (can he now re-challenge that?).
  •  In 2007, the pharmaceuticals mogul Branislav Kostic was ruled “not of sound mind” when he made a will leaving £8.3m to the Conservative party .... a strange definition of insanity if ever there was one.
  •  Gina Rinehart, Australia's richest person, wants to cut three of her children from access to their stakes in the mining business she has run for the past 20 years ... they are not happy.
  • Joan Crawford the film actress explicitly disinherited the two eldest of her children, Christina and Christopher, writing "It is my intention to make no provision herein for my son Christopher or my daughter Christina for reasons which are well known to them." She left a lot of her money to her other children and her favourite charities.

..... we may see a lot more disputes like these.


  1. One way to be sure that your estate goes where you want it to go is to do it before you die. I'm just surprised how many parents want to disinherit their children !?

    1. You pick your friends but have no choice over your relatives. There are plenty of families where they no longer see each other after rows, so why leave them your money?

  2. I really appreciate your efforts to put this information here..Graeme is ideally placed to represent clients from the Northern Beaches in the city courts and to ensure that they receive the best possible outcome in their matter.
    Family Lawyers Northern Beaches


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