Last year’s series of television programmes involving Gerry Robinson “You can’t take it with you” were compulsory viewing in my household. Apart from the fact that I deal with contentious trust and probate litigation, and therefore have a keen interest in the will making process, I am also a qualified mediator and the process which Gerry Robinson took each of the families through was in some ways not dissimilar to a mediation.
The theme of the series was that if there was likely to be a dispute after someone’s death about the contents of their will rather than just letting that happen it was better to try to agree a ‘settlement’ involving the whole family whilst the will maker was still alive. As laudable an objective as that was the provisions included in the final will could still be upset by one of the family members making an application under the Inheritance (Provision for Family & Dependants) Act 1975. Under that act certain recognised categories of people e.g. children, spouses and ex-spouses, registered civil partners, co-habitees and anyone financially dependent on the deceased can ask the court in effect to alter the provisions of the will in their favour.
We are sometimes asked to advise clients in the process of making a will what can be done to guarantee that no such application is made after their death. The answer under the present law is nothing. Although Inheritance Act claims issued after somebody has died can be settled in much the same way as any other form of litigation there is currently no effective way of doing that ‘in advance’. It is thought to be against public policy to have such agreements which it is said ‘oust the jurisdiction of the court’ to decide what is reasonable.
That is an argument which has also arisen in connection with pre-nuptial agreements. In 2010 however the Supreme Court in the case of Radmacher –v- Granatino was asked to consider the effect of these agreements. Whilst only parliament could decide that they should be legally binding in all cases the court decided that more weight should be given to them than previously unless it was unfair to do so e.g. if there had been a significant and unexpected change of circumstances. If that is now the position in connection with divorce proceedings then why can it not also be the position in relation to Inheritance Act claims. Clearly certain protections would need to be brought in to ensure that one party was not being taking advantage of. It may be for example that there would need to be some sort of mediation like process to ensure ‘fair play’. The usual factors which make any other type of contract unenforceable such as fraud or misrepresentation would also still be relevant.
This is not a solution that will appeal to everyone but with the increasing complexity of modern family relationships and the increasing frequency of second and subsequent marriages why should someone who is prepared to put time and effort into getting their affairs in order before they die be thwarted by the law of the land from doing so?
Whilst none of this means that ‘you can take it with you’ it would increase the chances of more of the will maker’s money ending up where they intended it should. Currently when Inheritance Act claims are made they can end up being bitterly contested with resulting expense and in circumstances where the person who stood the best chance of keeping a lid on everything is no longer around to do that.
