Testamentary Freedom & the Blended Family

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Dear Jaspal,

Let’s see the power testamentary freedom, a fundament of inheritance practice in England and Wales grants you.

Testamentary Freedom – The Pirelli Calendar

You might recall Carl Lewis, the track and field athlete who had won nine gold medals at the Olympic Games. In 1994, the tyre manufacturer Pirelli ran a billboard campaign. They engaged the master photographer Annie Leibovitz to photograph the track star. The billboard adverts, you might remember them. They featured the track star in red high-heeled shoes. He was in the stance of a sprinter set at the start of a race. It looked rather ridiculous. That, my friend, was the point. The legend on the advertising hoarding 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 the principle of testamentary freedom.

Testamentary Freedom – What’s the Point?

Barely a month passes without some ill-informed observer with clickbait in mind or more prosaically and painfully, an unsuccessful party in inheritance litigation bellowing at the full capacity of their lungs: ‘what’s the point of a will, if the will, which spells out the wishes of the deceased can be overturned?’. Implied in that plaintive cry of anguish is: ‘it’s 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 thing. There is a cost and a duty to everything you have. There is a cost and a duty to everything you are. By the principle of testamentary freedom, in England and Wales, you may leave your estate to whomever you wish.

Testamentary Freedom – There and Here

In certain jurisdictions such as Scotland, several European nations, and much of Latin America, there are partial or total forced heirship regimes. Forced heirship means that certain members of the family get specified proportions of the deceased person’s estate irrespective of the provisions of any will that might exist.

In certain jurisdictions with forced heirship, the rules may compel estates to be distributed among step-relatives.

In England and Wales there are no prescriptions on what which relatives might get what assets from a deceased’s person’s estate. You may do as you wish with your estate.

Testamentary Freedom – That Advert Again

Let us dispense with a few points on which a will might be contested – one is that the document was a forgery, and the other was the testator did not know what they were doing or that they were pressured or bullied in to writing the will the way it turned out.

Let us assume the document was perfectly valid and the point of contention is that the disappointed expectant beneficiaries claim they have been unreasonably left out of the estate.

By the principle of testamentary freedom, while you may leave your estate to whomever you wish, you may not be capricious or arbitrary about the provisions of your will. In particular the law expects you to make provision in your will for those who depended on you financially.

While there no specific provisions or protections for stepchildren. There are several questions of which here we’ll consider a couple: the first is whether or not the stepchildren in question were financially dependent on the person whose will it is, and secondly, the composition of the assets in the estate – are the assets in question in whole or in part from the estate of the biological parent of the stepchild.

Testamentary Freedom and Blended Families – Power and Control

The power of testamentary freedom is nothing without the control of using the power judiciously and fairly. The way to be certain of the sensible use of testamentary freedom is to speak to an expert.