Freedom to disinherit

Introduction: forced heirship and testamentary freedom

Study of succession laws, both ancient and modern, demonstrates the worldwide recognition of the notion that a testator has a duty to provide after death for those related to them by near kinship. That may be achieved either by a system of compulsory shares for preferred heirs or by statutes conferring on the court a discretionary power to alter the dispositions of a deceased person’s estate. Among the few modern jurisdictions in which a testator’s powers of disposition are untrammelled in either of those ways are the British Virgin Islands and the Cayman Islands. ^[5]

In some legal systems, that duty was enforced from the beginning; thus, across societies of the ancient Mediterranean, the next of kin in the male line usually inherited, the eldest son being particularly favoured,^[6] while in ancient Athens, a testator could not, by will, disinherit their legitimate sons.^[7] By contrast, the earliest Roman laws of succession did not restrict testamentary freedom; the development of those restrictions is the subject of the below section, ‘The Roman law of succession: From the Twelve Tables to Justinian’. Failure by children to display the Roman virtue of pietas towards their parents was a ground for disinheritance,^[8] and this is mirrored, in the context of the Inheritance (Provision for Family and Dependants) Act 1975 (the 1975 Act) case law, in Douglas’ observation that:

‘Where adult children are the applicants, some sense of filial responsibility appears to be expected. A child who ignores her parent or (like the god‑daughter in Baynes v Hedger)^[9] makes excessive demands on the deceased’s wealth, has not behaved appropriately and may find herself excluded. Indeed, the insistence of the courts that there is no requirement to show that the deceased owed a particular moral obligation to the claimant becomes turned round to an effective requirement on the part of the claimant to show that he or she fulfilled the obligation of a child to show concern for a parent during his or her lifetime.’^[10]

In England and Wales,^[11] the extent to which freedom of testation has existed has been recounted in Tyler’s Family Provision^[12] and in subsequent valuable surveys by Matthews,^[13] Kerridge^[14] and, most recently, Kennedy, who comments on ‘the self‑restriction of testators who feel morally obligated to provide for their families.’^[15] However, from the earliest recorded years of English will making, testators have been ready to express their freedom from any such restrictions. In 1395, Lady Alice West made a codicil revoking gifts to her son and daughter‑in‑law ‘if they won’t act as executors’ and giving money to those who would; Sir William Langeford may, in 1411, have been the first English testator to include a no‑contest clause in a will; and, in 1418, John Chelmswyk bequeathed his manor, Staverton, to his wife on condition that she suffered her mother to occupy his manor of Apsley without disturbance, and if she did not do so she should be ‘utterly excluded and voided’ from Staverton.^[16] Kennedy also observes that there was a period during which ‘the jurisdiction over wills of personalty had passed to the ecclesiastical courts. The significance of this was that testators, wishing for safe passage to heaven, were likely to leave their final one‑third share of their chattels to the Church’.^[17] In 1432, Richard Gray was so concerned with his spiritual welfare as to leave all his goods to his executors ‘to helth and salvacion of my sowle’, thereby disinheriting his sons and his wife, whom he named as one of his executors.^[18]

Family provision in England and Wales: claims by adult children

Under the pre‑1975 Act legislation

The existence or non‑existence of a moral obligation to provide for persons closely related to the testator was often an important factor in the outcome of pre‑1975 Act cases, though the majority of the reported cases in that period were applications by widows and widowers.^[19] The Inheritance (Family Provision) Act 1938 (the 1938 Act) did not refer in terms to a ‘moral obligation’, but s.1(6) required the court to have regard to matters that included the conduct of the claimant towards the deceased.^[20] In Re Andrews,^[21] moral obligation was crucial in determining the outcome.^[22] The claimant had left the parental home in 1911, aged 25, and formed a permanent relationship with a married man, Mr Phillips, by whom she had six children. That relationship was still subsisting at the time of the testator’s death when the claimant, aged 69, was unable to work through disability and Phillips was unable to support her. She had had little contact with her father and an attempt at reconciliation with him in early 1951 was unsuccessful, owing to a quarrel that arose when he accused her and her son of deliberately stealing items of personal property from his house. The trial judge found that he had, before that event, intended his estate to be shared equally between the claimant and her two sisters, but his will, made after the incident, excluded her completely. Although he did not believe the accusation, he regarded it as irrelevant and held that:

‘It is clear, partly from the decided cases^[23] and partly from a perusal of section 1 of the Act of 1938 that a most important, if not the most important, consideration which the court should have in mind is the extent to which, if at all, the testator was under a moral obligation to the person claiming relief.’

Under the 1975 Act, before Ilott v Mitson

The question of whether the obligations referred to in s.3(1)(d) of the 1975 Act encompassed both legal and moral obligations was much debated after the judgment of Judge Oliver (as he then was) in Re Coventry, in which he stated that:

‘There must, as it seems to me, be established some sort of moral claim by the claimant to be maintained by the deceased or at the expense of the estate beyond the mere fact of a blood relationship, some reason why it can be said, in the circumstances, it is unreasonable that no or no greater provision was in fact made.’^[24]

Two of the grounds of appeal were that Oliver J had erred both in making the existence of a moral obligation a prerequisite to the success of the application and in finding that there was none. The England and Wales Court of Appeal (the Court of Appeal) unanimously rejected both of those grounds,^[25] but the question of whether the deceased had a moral obligation towards the claimant continued to be raised in cases over the following two decades. That is, until the notion that there had to be a ‘moral obligation’ or a ‘moral claim’ for a claim by an adult child to succeed was finally disposed of.^[26] It is nevertheless the case that claims were made by (in Matthews’ words) ‘ostensibly able‑bodied adult children’^[27] in which the existence of circumstances that may be regarded as giving rise to a moral claim was crucial to the claimant’s success. Such circumstances include:

• a promise made by the deceased (D) to someone other than the claimant (A) that A would benefit in some way on their death, in circumstances where it would be unconscionable for the promise not to be fulfilled;^[28]
• A, having been encouraged by D to believe that they would benefit on D’s death, had acted to their detriment in reliance on that encouragement;^[29]
• A had voluntarily acted in a way that benefited D and suffered detriment in so doing;^[30] and
• so‑called ‘lame duck’ cases,^[31] in which A, though not incapacitated, was in some way disadvantaged or vulnerable and in need of financial support in consequence.^[32]

During the period 1976–2016,^[33] in which claims were made by adult non‑dependent children, in 20 of the 32 cases^[34] (four of which were not fully reported)^[35] there were six in which the claimant suffered from a mental or physical disability, or both, and 14 in which the circumstances fell into one of the four categories listed above. Four of the disability claims succeeded,^[36] as did all 14 of the other claims. The two unsuccessful claimants in the disability cases were the son in Christophides v Seddon^[37] and the daughter in Wright v Waters,^[38] where, as discussed below, the claimant’s conduct towards her mother was decisive. In Christophides, the claimant’s mother (M) had left her residuary estate to him, her two daughters and a granddaughter in equal shares. He had serious health problems, had not worked for over ten years and was dependent on state benefits. He was living in M’s house; however, he wished to purchase accommodation for himself. All three of the other legatees were in financial difficulty and one of the daughters was also in ill health. It was held that M had discharged her obligations and responsibilities to her adult children by giving them equal shares and that, although she knew that her son was unwell, she did not regard the provision of accommodation for him as her responsibility.

Of the remaining 12 cases, the only one in which the claimant succeeded was Re Christie, which has never since been regarded as correctly decided.^[39] Three of the 11 unsuccessful claims did not involve any issues of conduct by the claimant. Re Jennings was a successful appeal against the order made at first instance,^[40] awarding the claimant GBP40,000 out of his father’s estate, which, so it had been found at trial, he reasonably required to discharge the mortgage on his house. His father separated from his mother soon after his birth and never had anything to do with him thereafter. The Court of Appeal held that s.3(1)(d) did not refer to obligations that had long been spent at the date of the deceased’s death, and that the discharge of the claimant’s mortgage would not, in the circumstances of the case, be ‘maintenance’. In the unreported case of Riggs v Lloyds Bank, the adult daughter’s case was based on the help and care that she had given to the testator. She was awarded GBP20,000 by way of a commuted maintenance payment while her daughters, aged 14 and 10, were still dependent on her. The Court of Appeal, setting aside that order, held that the daughter’s claim had not been based on her need to maintain her own children; that claim had been devised by the judge.^[41] In Wade v Varney,^[42] the deceased died intestate, survived by her son and daughter. The son had been living in the deceased’s house, which was the principal asset of the estate, and wished to continue doing so. His claim failed at first instance and the single judge refused leave to appeal, holding that the trial judge had obviously reached the right result. Both were adults, both were earning; equality was the result of the intestacy and the obvious answer.

The issues of conduct that arose in the other eight cases involve either conduct affecting the relationship between the claimant and the deceased, or conduct by the claimant adversely affecting her own financial position.^[43] The first type includes lack of contact, hostility or other conduct causing distress, and financial abuse of the deceased; the second includes improvident use of the claimant’s own financial resources and failure to support themselves although being capable of doing so.^[44] Table 1 shows the relevant issues in each of the eight cases and also, where so found, that the claimant was not in financial need.

In Re Portt,^[45] the claimant was quarrelsome and litigious, and was cut out of her mother’s will as the result of a quarrel. Re Rowlands was a claim by the deceased’s widow, which succeeded, and by two daughters of the marriage whose claims were dismissed at trial. In view of the absence of any relationship between the older daughter and her father for over 30 years, and the resources of her own household, the legacy of GBP1,000 to her in his will amounted to reasonable provision. The claim by the younger daughter was dismissed as being totally without merit. She had led an independent life, been married and divorced, and had no financial need. In her own words, she did not see why her brothers should have everything;^[46] a good example of the culture identified by Matthews as one in which adult non‑dependent children consider it their right to inherit from the deceased.^[47]

The conduct of the 43‑year‑old adopted daughter who was the claimant in Williams v Johns^[48] was held to have negated any moral obligation. She had been a juvenile delinquent and her conduct in adult life had caused shame and substantial emotional distress to her mother and, although capable of working and having been independent of her mother for some years, she was unemployed. She alleged that she had an affectionate relationship with her mother, but she had done nothing to care for her after her adoptive father’s death. It was held that she had failed to show any obligation to be maintained at the expense of the estate or any reason why it would have been reasonable for her mother to have made provision for her.

In Robinson v Bird and Robinson v Fernsby,^[49] the claimant (V) was the 45‑year‑old daughter of the testator (E), with whom she had lived until 1988 and by whom she had been financially supported. After E went into a nursing home, her house was sold and, on an application to the England and Wales Court of Protection, it was ordered that a lifetime gift to V of the proceeds of sale (amounting to GBP205,306) be made on terms that it be treated as an advance made on account and in part payment of any share of the property of E to which V might be entitled under E’s will or intestacy, and with V paying any inheritance tax that might become payable in consequence of that advance. Under E’s will, her estate was divided equally between V and D, E’s grandson (D’s father having predeceased E). On advice, V invested GBP165,000 of this in higher income‑yielding investments, but after some three years their value had fallen to GBP72,000 and her other capital amounted to GBP14,000, leaving her with an income shortfall. Her claim for a capital sum to cover the calculated income shortfall was dismissed for three reasons. First, because substantial provision had been made for her by E during her lifetime. Second, because she had decided to anticipate the major part of her inheritance by applying for a lifetime gift, which if prudently invested, combined with her income from other sources, would have left her with an income surplus. Third, because she had chosen to adopt a risky investment policy to support a way of life in which her expenditure substantially exceeded her income.

In Garland v Morris, the claimant (Y) was one of the two daughters of the deceased, who left his entire residuary estate (GBP284,361) to his other daughter.^[50] Y had no capital resources except for her own house, which she had bought with money inherited from her mother, and which was in a bad state of repair. Her claim was for two lump sums for renovations and conversion of the house. Dismissing the claim, the judge found that although Y was in financial need and lived in sub‑standard housing, she had failed to establish that the will did not make reasonable provision for her. The main factors in that decision were that she had inherited all her mother’s estate, which had enabled her to buy her own house; its poor condition was largely her own fault; and she bore some responsibility for her financial difficulties in that she had had three children by a man who, she must have realised, was never going to contribute to her maintenance. Unlike her sister, who had maintained a close relationship with the deceased throughout, she had been estranged from him for many years and he owed her no obligation.

In Bye v Colvin‑Scott,^[51] it was found that the deceased, who was the claimant’s (E’s) mother, did not wish to make any provision for E because of what she perceived as E’s abusive treatment of her. In particular, obtaining her signature to a document purporting to give E a life interest in her property, and taking her to a new solicitor to make a new will and give E an enduring power of attorney, which was found to have been against the deceased’s express wishes.

Wright v Waters is the first reported case in which an otherwise viable claim for financial provision was dismissed because of the claimant’s conduct. The claimant (P), a widow aged 64, was the daughter of the deceased (M). She was in difficult financial circumstances, she suffered from ill health to the extent that she was wheelchair‑bound and no other beneficiary had demonstrated a need for M’s bounty. M left her estate, valued at GBP138,000, to other members of the family; neither P nor the family of her marriage received anything. By a letter written on the same day as the will, M explained that this was because P had already taken GBP10,000 of her savings; she had been a constant source of trouble to her for many years; there had been no contact between them for nine years; and P had shown no interest in her welfare. In October 2001, P had also written a letter to M disowning her as her mother and stating that she was not fit to call herself that, concluding by wishing her dead. It was found that if the extreme language of the letter was caused by the stress P was undergoing at the time, she had had ample opportunity during the nine years before M’s death to retract those words, but she never did so and never communicated with M again.^[52] Taking account of all the s.3 factors, the value judgment was that P’s conduct outweighed all those that were in her favour. In those circumstances, it was objectively reasonable that M’s will made no provision for her and the claim was dismissed.

In Ames v Jones,^[53] the deceased (M) died in 2013, survived by the widow of his second marriage (E, aged 63) and the daughter of his first marriage (D, aged 41). M and E had cohabited since about 1980 and married in 2001. There were no children of that relationship. M left his entire estate, valued at GBP1,049,414, of which GBP650,000 was represented by the matrimonial home, to E, should she survive him; D would have benefited if she did not. It was found that the estate was not large enough to support D and E; D had not satisfied the court as to her own needs and resources. She was capable of working and had failed to prove that she was unable to obtain work; therefore, her lack of employment was a lifestyle choice, whereas E was past working age and in poor health, had a modest surplus of income over expenditure and required the entire capital of the estate to meet her reasonable needs. D’s claim was therefore dismissed.

Ilott v Mitson and the subsequent cases

There has been a wealth of commentary on the decision of the UK Supreme Court in Ilott v Mitson, but the discussion in this article is confined to two aspects of it. The first is the basis on which the claimant succeeded, and the other is whether ‘the floodgates have opened’ as a result of it. On one view, the decision is inconsistent with Re Coventry; the claimant was a daughter of the deceased, in precarious financial circumstances, and the estate was amply sufficient to provide any necessary relief, but there was no other circumstance that would tip the balance in her favour.^[54] In his judgment, District Judge Million referred to ‘the ordinary family obligations of a mother towards her only child who was an independent adult’.^[55] However, he did not indicate that those obligations were financial,^[56] nor why any obligation should be thought to exist in relation to an independent adult, particularly one who bore a substantial responsibility for the breakdown of the relationship. On appeal, Eleanor King J considered that those obligations were not a weighty factor of the nature envisaged by the Court of Appeal in Espinosa v Bourke^[57] as justifying an award of financial provision.^[58] Nevertheless, both the Court of Appeal^[59] and the Supreme Court^[60] agreed with the conclusion that all of the factors taken into account by Million DJ and set out at paras.48–63 of his judgment had combined to produce an unreasonable result in that no provision was made for the claimant in her mother’s will.

The outcomes of the following seven cases decided since Ilott v Mitson do not indicate that the floodgates have opened or are likely to do so. Four of the seven claimants succeeded^[61] and three failed,^[62] and it is submitted that all seven would have been decided in the same way before Ilott v Mitson.

In Nahajec v Fowle, the claimant (E) was the 31‑year‑old daughter of the testator’s second marriage. He was also survived by two children of his first marriage but he left his entire estate to a friend (F), whom he also appointed as his executor. In a note addressed to F, the testator stated that he was not making provision for any of his children because of their failure to contact him for a period of 18 years and their lack of interest in him, and that they were of independent means. However, as in Myers v Myers, the court did not accept the testator’s reasons for not making provision for the claimant. The lack of a relationship was not due to her but to the testator’s stubborn and intransigent nature, nor was she of independent means; she worked in two jobs, her total income was so low that she qualified for working tax credit, and she was some GBP6,000 in debt. She had obtained a number of vocational qualifications and wished to study to become a veterinary nurse; one of her jobs was at a veterinary surgery. She was awarded GBP30,000 to cover the cost of the necessary study and to meet her indebtedness.

In Lomax v Greenslade, the deceased made no provision for any of his three children (R, Z and C), and left his entire estate to G, also appointing her as sole executor. All three had little money and were in difficult circumstances. R had the worst living conditions but had no dependants and no significant indebtedness. Z was earning respectably but needed a secure roof over her head and had to contribute to the upbringing of two teenage children. C lived in Hungary, where the cost of living was lower, but had two children under ten years of age and their father had mental health issues. G did not attend the trial or disclose her financial position, but was known to own a property in which she had lived for many years and to receive rent from another property; she was presumed to have reasonable financial provision without any benefit under the will. In the result, G was to receive GBP69,000 from the estate and the balance was to be divided equally between the claimants. On appeal, that order was upheld.

In Re H, there were competing obligations. H had left his entire estate to his wife, aged almost 80, who had serious health problems and was living in a care home at a cost of GBP52,000 per year. The claimant was his daughter, who was aged 50, had two children and suffered from a debilitating mental disease. She had been estranged from her family for ten to 20 years. Her income consisted of benefits, calculated on the basis that her partner was living with her and able to contribute his wages towards her expenses, but that was not the case, as his income was mostly absorbed by his own accommodation and living costs. It was found that the will did not make reasonable provision for her, but provision would be limited as the priority was for the widow to have sufficient resources to be maintained for the rest of her life, and there had been a long estrangement. Her priority needs were for provision to fund the recovery of her health and to meet her income shortfall over the recovery period, which was likely to be three years. Out of a net estate of GBP554,000, she was awarded GBP138,918.

In the Northern Ireland case of Noble v Morrison, the deceased was survived by two daughters, one of whom (K) was the claimant, and a son. The deceased’s estate was held upon trust for his three children in equal shares. The major asset of the estate was the family home, valued for probate at GBP150,000, and the will contained a wish, expressed to be non‑binding, that if (as was the case) his wife predeceased him, either of his daughters should be permitted to reside in the matrimonial home for as long as they required. K, aged 53 at trial, had lived with her parents providing care and support for them and receiving an allowance of GBP550 per month, and she continued to live there after her father’s death. She suffered from both mental and physical ill health, was reliant on state benefits, and there was no prospect of her obtaining gainful employment. She had been financially dependent on her parents throughout her adult life and they had indicated to her that she would be able to live in the family home for life. The order made was designed to ensure that K remained living in the family home for life and that the administration costs and, as far as possible, the defendants’ litigation costs should be met.

Ball v Ball arose out of very unusual circumstances. By her marriage to J, who died in or about 2004, the testator (T) had 11 children, three of whom (N, D and B) were the claimants. The defendants were the other eight children and a grandchild, who were the beneficiaries under T’s will, made after a family quarrel in 1991 that resulted in the claimants becoming estranged from the rest of the family. All the claimants had reported sexual abuse by J. The quarrel arose because T had subsequently asked all of the children whether they had any allegations to make of a similar nature against J, and as they had not, she considered the matter closed. A letter signed by both parents at the time they made their mirror wills made it clear that their annoyance at it being subsequently reported to the police was the reason why the claimants had been excluded.^[63] The claimants challenged the will and made a 1975 Act claim in which they argued that T owed an obligation to them because she cut them out of her will as a result of their having accused J of sexual offences, some of which he had admitted. Both the challenge to the will and the 1975 Act claim failed; neither the abuse by J nor the conduct of T in reacting to their complaint created any kind of moral obligation on her to compensate them by leaving a share of her estate to them. Also, if the estate of GBP157,000 were to be divided among 12 beneficiaries, they would each receive GBP13,083, whereas, under the will, the nine beneficiaries each stood to receive GBP17,444. That adjustment would make relatively little difference to the financial circumstances of the parties and, in any event, the evidence showed that the claimants were no worse off than the defendants.

In Wellesley v The 8th Earl Cowley and ors, the claimant (T) was the daughter of the seventh Earl Cowley by his first wife. Out of a net estate of approximately GBP1.3 million, T was left a pecuniary legacy of GBP20,000 free of tax. T, who was 56 at the date of the hearing, had a 21‑year‑old disabled son (F) who had been living in an assisted care facility for several years. She had left home at the age of 19 and had been estranged from her father for some 30 years due to her adopting a lifestyle of ‘drink, drugs and bohemia’ and her rejection of her father’s and stepmother’s values. Her subsequent attempts at reconciliation were not reciprocated. She suffered from mental illness and claimed that this prevented her from obtaining employment, though she did engage in part‑time voluntary work. Her income derived entirely from welfare benefits. There was psychiatric evidence that she was capable of work and that occupational therapy could improve her capability. It was held that no claim could be made in relation to F as he was neither a child nor a dependent of the deceased and, in any case, T had not had to provide for his needs since he had been living in residential care for some years. On consideration of the s.3 factors, it was found that her evidence indicated that she could and did live within her means, and her legacy could fund the cost of occupational therapy to increase her capability to work. The deceased had no obligations to maintain his adult children. The other beneficiaries had not, as she claimed, prevented her from reconciling with the deceased and the estrangement was solely due to her.

In Shapton v Seviour, the deceased, who was survived by the widow of his second marriage (M) and the two children of his first marriage, his daughter C (the claimant) and his son, left his net estate of GBP268,000, of which GBP215,000 was represented by his share of the matrimonial home, to M. Some 15 months after his death, M was diagnosed with motor neurone disease. She was wheelchair‑bound, living in her home, adapted for her disability, and dependent on the daughter of her first marriage and live‑in carers for personal hygiene and day‑to‑day care. Her income of GBP1,377 per month derived from benefits re‑assessed annually and GBP162 per month from the UK Pension Protection Fund. C, aged 32, was married with two children. Her husband was earning GBP37,500 per year plus a bonus and she received child benefit, but it was open to her to resume work after her period of maternity leave. She claimed to need a larger home and stated that she and her husband had debts of some GBP20,000 and were incurring loan charges of GBP450 per month. The claim was dismissed as hopeless. Eighty per cent of the estate was tied up in M’s specially adapted house and she would need all her cash resources for her own day‑to‑day needs during the uncertain period of her illness, which would eventually become terminal. C and her husband led a comfortable life and their debts and loan charges were self‑inflicted.

The Roman law of succession: from the Twelve Tables to Justinian

Before the adoption of the Laws of the Twelve Tables (451–450BC), the owner of property was free to dispose of it as he wished, and Law I of Table V perpetuated this position.^[64] The first incursions into that freedom did not establish a system of compulsory shares and were, in practice, easily evaded.^[65] A father’s legal right to disinherit his children was curtailed in practice not only by social expectations that (as in the law of intestate succession) viewed them as his natural heirs, but by the practical consideration that, if the testator’s designated heir did not accept the succession, his will would be rendered ineffective. The heir succeeded to all the testator’s liabilities as well as his rights, so it had to be made financially worth his while to do so. Christoph G Paulus has observed that ‘it was an extraordinary threat to a testating Roman that his will could be totally annulled and his estate distributed according to the law of intestate succession’.^[66] It was not until the early years of the Principate that these social expectations were given legal force.^[67] The remedy of the ‘complaint of an undutiful will’ (querela inofficiosi testamenti) was made available to those persons who would have been the nearest heirs if the will maker had died intestate. Formally, the querela alleged that the testator had violated natural law by excluding family members from the inheritance, in favour of strangers, and relief was granted on the basis of the legal fiction that the testator must have been mentally deranged to make such a will.^[68] The measure of entitlement if their claim succeeded was eventually fixed as a one‑quarter share of the value of the estate (the legitima portio).^[69] However, among the conditions that had to be satisfied for the remedy to be granted was that the claimant must not have deserved to be disinherited.^[70] Charles J Reid Jr traces the development of the connection between the idea of pietas and the Roman law of testamentary succession, and of its reciprocity between generations. Children were to demonstrate pietas by deference and devotion to their parents, and parents by discharging their duties towards their children; an important way of doing so being to make testamentary provision for them. But, as Reid observes in his discussion of Justinian’s definitive words on inofficious wills, ‘a certain ambiguity had always surrounded the question of pietas and the right to claim the legitima portio. How much respect and devotion was required to qualify for a share of the estate […] How much pietas was just enough? And how and when did one fall short of this shifting and elusive standard?’

Eventually, Justinian answered these questions in considerable detail in his Novella 115, Chapter III, entitled ‘What are just causes for the disinheritance of children?’.^[71] In summary, no ascendant (i.e., parent, grandparent or great‑grandparent) was to be permitted to disinherit a descendant unless they had provided them the shares to which they were entitled by law in some other way, or it had been proved and stated in their wills that the named descendant had been ungrateful; and 14 types of conduct are specified as the only grounds on which ingratitude may be alleged. Although some of them are highly unlikely to be alleged in present‑day circumstances,^[72] all but one fall into one of four broad categories that have present‑day counterparts, namely:

• Physical or verbal abuse.
• Conduct impairing the structure of the family, being liable to cause either reputational damage to the family, disharmony within the family, or both.
• Failure or neglect to provide due support, either of a financial or a personal nature.
• Interference with the testamentary process.

More than one‑and‑a‑half millennia after Justinian, the question of whether an adult child deserves to be disinherited is a live issue both in the civil‑law systems, in which forced‑heirship rights can be overridden because of the conduct of the forced heir,^[73] and, in common‑law systems, where the conduct of the claimant is relevant to the exercise of the discretionary power enabling the court to interfere with dispositions on death.

Grounds for disinheritance of forced heirs in current legal systems

A recent survey of the relevant legislation in EU Member States summarises the principal sources of succession law in each state;^[74] its historical development; the extent to which and the manner in which forced heirship operates; and the circumstances in which and procedures by which forced heirs may be disinherited. Among non‑EU jurisdictions, grounds for disinheritance similar to those in the laws of EU Member States are found in the succession laws of Brazil, California, Liechtenstein, Mexico, Oregon, Quebec, Switzerland and Taiwan.^[75],[76]

The grounds for disinheritance in current legal systems reflect the continuing influence of Justinian’s laws. Among those most commonly found are intentional killing or attempted killing, and interference with any aspect of the testamentary process. Some jurisdictions have gone further by providing for disinheritance when other criminal acts are committed and when the victim of the killing or other criminal act is a spouse, a child or other descendant, or a parent or other ascendant of the deceased. For example, Slovenian law provides for disinheritance when the forced heir has committed a grave criminal offence with intent against the deceased or their spouse, child, adoptee, parent or adoptive parent, and also for idleness (that is, a permanent and unfounded avoidance of work) and other actions considered to be immoral by society in general.^[77] German law provides for disinheritance where the heir has committed an intentional criminal offence and his participation in the estate is thereby unacceptable to the testator, but deprivation of the compulsory share due to ‘leading a disreputable, immoral life’ was abandoned following the reform of the law in 2010.^[78]

Interference with the testamentary process is a ground for disinheritance in the majority of the above jurisdictions. Such interference may consist of preventing or obstructing the making, revocation or alteration of a will, or by fraud, duress or undue influence in relation to those aspects; and forging, fraudulently creating or falsifying a will, or suppressing a will by destruction or concealment.

In a minority of those jurisdictions, acts causing reputational damage to the deceased or the family may be grounds for disinheritance. Thus, in the summary of French succession law,^[79] it is stated that ‘unworthiness to inherit is a case of civil forfeiture, a civil sanction against those who had inheritance rights but are guilty [of] serious offences against the deceased or his/her memory’. Similarly, Portuguese succession law provides for disinheritance not only for acts against the life of the deceased and certain relatives but also acts against the honour of the same persons.^[80] In several jurisdictions, falsely accusing the deceased of a crime or bearing false witness against them in criminal proceedings is such a ground.

Estrangement, without more, was not among Justinian’s acts of ingratitude, nor was it, until recently, a ground for disinheritance in any current legal system. However, Catalan legislation now provides for disinheritance on the new ground of ‘evident and continued lack of family relationship between the deceased and the beneficiary of the compulsory share, provided that it is solely imputable to the beneficiary’.^[81] Strictly speaking, as Aloy observes, that provision would be inapplicable in many cases, since often it would be impossible to prove that the disagreements between relatives could be blamed on one person only rather than the testator as well. He expresses the view that the rule must permit disinheritance when a beneficiary’s behaviour becomes the efficient cause in view of all the surrounding circumstances suggesting lack of family relationship.^[82] It is also the case that hostile or uncaring behaviour of a type that might well occur in the course of an estrangement features in some succession laws. Examples are a deliberate act that has seriously offended the deceased or a close relative;^[83] cruel or otherwise reprehensible behaviour towards the deceased;^[84] mistreating or insulting the deceased;^[85] and failure or neglect to care for, support or maintain the deceased, particularly where there was a statutory obligation to do so.^[86]

Disinheritance may or may not inevitably result from any of the causes referred to above. In Cyprus, a person is incapable of succeeding to an estate if they commit certain specified acts, though incapacity may be annulled by a formal statement made by the testator in a declaration or a will.^[87] Many other jurisdictions permit the testator to forgive the conduct that would or might otherwise result in disinheritance. In contrast, the French Civil Code distinguishes between cases of ‘obligatory’ unworthiness and ‘discretionary’ unworthiness. Obligatory unworthiness occurs where a person has been found guilty of having intentionally caused or attempted to cause the death of the deceased, or has been found guilty of having caused physical harm that unintentionally led to the death of the deceased, and thereby automatically loses any succession rights. Discretionary unworthiness, on the other hand, occurs where the heir may, on other grounds, be declared unworthy to succeed by the court on the application of the public prosecutor or an interested party.^[88]

Comparison and conclusion

This comparison between the 1975 Act case law and the grounds for disinheritance in civil‑law systems relates to four types of conduct: unlawful killing, other criminal acts, non‑criminal conduct and interference with the testamentary process.

Unlawful killing

The Forfeiture Act 1982 precludes a person who has unlawfully killed another (D), or is an accessory to the killing, from acquiring a benefit in consequence of the killing.^[89] Its scope is therefore much narrower than that of the corresponding grounds for disinheritance in civil‑law jurisdictions, where disinheritance may result from the unlawful killing or attempted unlawful killing not only of D but also of members of D’s family.^[90] In the majority of EU jurisdictions, disinheritance results only if the killing was intentional. A person guilty of negligently causing the death of D, such as the claimant in Land v Land,^[91] would not be disinherited. Article 726 of the French Civil Code provides a contrary example, since the causes for obligatory disinheritance include causing physical harm that unintentionally led to the death of the deceased.

Other criminal acts

There is no reported 1975 Act case in which criminal conduct, as such, has been a factor in an unsuccessful outcome. For example, the claimant’s convictions for cannabis‑related offences in Williams v Johns were a feature of a way of life that negated any possible moral obligation on the part of her mother,^[92] but the criminality was not, of itself, a determining factor. Such offences would not have been sufficiently serious to be a ground for disinheritance in current civil‑law jurisdictions; some of them specify the severity of the penalty for the offence in order for it to be a ground for disinheritance. For example, the Austrian Civil Code provides that a person who has intentionally committed a crime carrying a penalty in excess of one year’s imprisonment against the deceased, their spouse, their registered or non‑registered partner, or their descendants or ascendants is unworthy to inherit.^[93]

Non‑criminal conduct

The five types of conduct contributing to adverse outcomes in the 1975 Act cases discussed above are lack of contact, hostile behaviour, financial abuse, failure to support oneself when capable of doing so and improvident conduct. Lack of contact, coupled with a failure to demonstrate any financial need, resulted in the dismissal of the younger daughter’s claim in Re Rowlands.^[94] In the other cases where there was lack of contact, at least one of the other four types of conduct also occurred. Hostile or reprehensible behaviour towards the deceased is a ground for disinheritance in several jurisdictions,^[95] as is conduct liable to cause reputational damage,^[96] but that conduct has not featured in any reported 1975 Act case. The civil‑law jurisdictions do not provide for disinheritance on the ground of improvident behaviour, but an immoral way of life is a ground for disinheritance in some jurisdictions,^[97] as is idleness.^[98] Slovenian law is particularly comprehensive as to disinheritance for non‑criminal as well as criminal conduct; of this, Kraljić has said:

‘Actions of the heir, such as drunkenness, laziness, immorality, hazardous behaviour, begging or violence, are judged in each individual case; the court decides whether the conditions for disinheritance are met … the listed actions are considered immoral, unjust or unethical by society in general. The law considers that those who severely damage society also violate their duties towards the deceased and thus do not deserve the forced share.’^[99]

Croatian law goes even farther down this road; a testator may disinherit a forced heir for a criminal offence committed against the Republic of Croatia or the values protected by international law.^[100]

Interference with the testamentary process

In Bye v Colvin‑Scott,^[101] the counterclaim by the deceased’s daughter (E) under the 1975 Act was dismissed. An important factor in this outcome was that the deceased expressed concerns to her solicitor some six months before her death that E was trying to get her to do things that she did not wish to do; E subsequently took her to another solicitor and tried to get her to change her will and to grant E an enduring power of attorney.

Conclusion

The above comparison shows that some types of conduct that are grounds for disinheritance in civil‑law systems have also contributed to adverse outcomes in 1975 Act claims, while there are others that have not, so far, featured in any reported 1975 Act case. Those include criminal conduct, other than unlawful killing, that affects the deceased; conduct, whether criminal or non‑criminal, that affects members of the deceased’s family; conduct calculated to damage the reputation of the deceased or members of the family; and anti‑social conduct generally.

It remains to be seen, as 1975 Act case law develops, which, if any, of these types of conduct will be considered relevant matters for the purposes of s.3(1)(g) of the 1975 Act, and whether, and to what extent, they might contribute to an adverse outcome of a claim. Finally, it is submitted that the occurrence or absence of any of the types of conduct of the nature discussed can materially assist in distinguishing between the deserving and the undeserving.