In England and Wales, anyone over the age of 18 who has sufficient mental capacity, has the default testamentary autonomy to make a Will to leave their estate in accordance with their wishes. This means they can leave all of their estates to whomever or whatever they want and however they want.
Those domiciled in England and Wales with assets in England and Wales are not forced by law to leave their estate to their children or other family members. Whilst some might feel morally obliged to leave everything to a spouse or children in equal shares to make it ‘fair’, there is no legal obligation to do this in England and Wales. For example, they can leave their estate to family members in unequal shares, or they can make a Will to leave everything to a charity or friends instead of the family for whatever reason.
This is in contrast to countries like France, where ‘forced heirship’ exists. This is where a particular percentage of an individual’s estate, under French Law, must be inherited by their children and/or spouse.
As mentioned above, some challenges to testamentary autonomy include the following:
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Testamentary capacity
In order for a Will to be valid, the maker of the Will must have the necessary testamentary capacity, i.e. they can understand what they are doing with the Will and its impact on their estate. There are certain legal tests to see whether a Will-maker had the necessary testamentary capacity at the time of making their Will to ensure that their Will is a true reflection of how they want to leave their estate.
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No undue influence
Someone making their Will cannot exercise their testamentary autonomy if another is influencing the Will-maker’s decision by excessive persuasion or manipulation. In recent years, we have also seen more cases of fraudulent calumny where someone’s influence over a Will-maker reaches a point where they are poisoning the testator’s mind against a potential beneficiary.
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The Inheritance (Provision for Family and Dependants) Act 1975
This is England and Wales’ closest measure to ‘forced heirship’ is the Inheritance (Provision or Family and Dependants) Act 1975 where certain classes of individuals may be able to make a claim against the estate. Those making a claim will need to prove that the deceased did not provide them with a reasonable financial provision. Some people may think that leaving a small token to their family might prevent a claim against their estate but this is a complex area of law that one should seek legal advice on.
Obtain legal advice
If you do own assets abroad, and you are concerned with the inheritance laws in those other jurisdictions, it is important that you seek legal advice and consider the following:
- How your assets abroad will be inherited;
- Inheritance Tax;
- Who will deal with the multi-jurisdictional estate; and
- How your assets abroad may affect your estate in England and Wales.
How can we help
If you have any questions concerning the subjects discussed in this article, please do not hesitate to contact a member of our expert Wills, Trusts & Probate team. Please call 0800 024 1976 or contact us via our online form.