Does English law give total freedom?
The EU regulation would allow me to choose English law. Does that give me complete freedom to leave my estate as I choose?
English law allows great freedom to leave your estate to whom you choose (Scottish law is not so simple as it requires you to leave a certain portion of moveable assets to a spouse or children). However this is subject to two provisos:
- The 1975 Inheritance Act, refers to making “reasonable provision” for your dependants’ maintenance, education or advancement in life.
- The possibility of a common law challenge to the validity of a will.
Honorary avocat Gerard Barron said, unlike the French rules, “reasonable provision” is far from meaning a set share.
“This allows a dependant – minor or handicapped child or an impecunious spouse – to obtain funds from the deceased’s estate, if the court finds that it was unreasonable to have made no provision or an insufficient provision."
Traditionally non-dependent children have had no rights but the English courts' position on this may be evolving after a woman whose mother left everything to charities she had no known connection with won a large sum in 2015 based on facts which included her having a large family and being in financial need.
This suggests it is now best for testators to spell out in their wills why they are disinheriting a child and what their link is with their chosen beneficiary/ies. This may cause complications for French courts if called on by a disinherited child to work out if it was 'reasonable' under English law criteria but at present there have been no cases on the matter.
As for a common law challenge the applicant must prove that the testator was not of sound mind when making the will or was acting under duress.
“That invalidates the will, meaning intestacy rules apply. However the fact the will appears unreasonable is not proof the testator was unstable".
