Testamentary Freedom… family provision

Let’s talk of testamentary freedom, because you might know the Pirelli calendar.

Popular history is a false friend.  Because, popular history tells us at the 1936 Olympics in Berlin, Hitler walked out of the stadium rather than congratulate Jesse Owens on earning four gold medals. Hitler, however, did not walk out of the stadium; he was not at the arena that day. He wasn’t so scheduled.

Owens later put down the unfounded ‘Hitler walking out of the stadium’ comment with: ‘The president [Roosevelt] never invited me to the White House to shake my hand.’

Forty-eight years after Mr Owens’s accomplishments, his compatriot, Carl Lewis, emulated his feat of four medals in track and field events at the Los Angeles Olympics. Gold medals. On the track, Lewis was the Usain Bolt of his day.

For several reasons, including his failed drug tests, Carl Lewis was no one’s darling.  He was a sore winner – he lacked the charity of champions, he wanted for the grace of the gifted.

It hardly occurred to this superstar athlete there was a commonality to those who refused to love him.  Carl Lewis was thus regarded by advertisers with the same affection with which a six-year-old regards spinach. But…

So Much for that Calendar

You might be aware of the Pirelli calendar.

In 1994, the tyre manufacturer ran a billboard campaign. They engaged the master photographer, Annie Leibovitz to photograph the sprinter.

power is nothing without control

The billboard adverts, you might remember them, they featured the runner in red high-heeled shoes in the stance of a sprinter at the start of a race.

It looked ridiculous. That, I suppose, was the point. The legend on the billboard comprised five words: Power is nothing without control.

The subject of the tyre company’s campaign was clearly the virtues of their products. However, they might as well have had in mind a well-drafted will, they might as well have been thinking of testamentary capacity.

‘What’s the Point?’ They Ask

Barely a month passes without an observer of, or worse, a defendant in an inheritance dispute asking me in the most anguished of plaintive tones: ‘What’s the point of a will, if the will, which spells out the wishes of the deceased, can be overturned?’

Implied in the question is: ‘It is my money, surely I should be able to do with it as I wish.’

Here’s the thing. It’s your money, you can do with it as you please.

Here’s the other thing: not all wills are born equal.

Testamentary Freedom
Testamentary freedom… don’t abuse it

A will draftsman of high calibre can see round corners. They can see the potential problems; they can solve them before they arise. All in the lifetime of the testator.

In English law, by the principle of testamentary freedom, one can leave one’s estate as one wishes. By the rules of decency and common sense, you must make reasonable provision for your family. In simple terms, those who you looked after in your life, including those conceived but not born before death, en ventre sa mere, are expected to be looked after your death.

Cutting Out Some

Disappointed expectant beneficiaries would bring a claim under the Inheritance (Provisions for Family & Dependants) Act 1975.

Spouses, civil partners and children are among those allowed to bring claims under Section 2 of the act. They can ask for a reasonable share of the estate.

Adult children, however, might face an uphill task in bringing a successful claim, because many, including I, understand the law’s intent is to protect dependents and minor children.

In conclusion, while you’re free to leave your estate in whatever proportions to whomever you please, you shouldn’t wilfully leave out anyone who would have a claim to your estate.

Testamentary freedom is all very well, but there’s little merit in abusing it.

You might recall the Pirelli calendar – power is nothing without control.

Testamentary freedom is the power – to do as you wish. Control, that’s what your draftsman’s there for.

What to read next: Could Your Will be Overturned?