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All To My Sons: Is There Room For Male Inheritance in the Modern World?
Date: 07/03/2024 Type: Articles Topic: Private Client | Trusts | Wills and Estates | Inheritance | Next Generation Wealth | Investment and HNWI’s | Tax |A will is assumed by most to be sacrosanct – the deceased’s last wishes which must be upheld whether or not that is detrimental to those who might otherwise have received an interest. There are plenty of views on inheritance, which to some may seem outdated or plain unfair. They may have their basis in cultural, societal or religious beliefs and norms. The most obvious example is that of assets passing down the male line, regardless of surviving female spouses and children. That may be because the assumption is that the sons will ‘look after’ their mother and/or sisters, but where there is any familial discord or ill will, this cannot always be relied upon.
In those circumstances the law may step in to assist those who find themselves affected by the testator’s decisions and left without proper provision. Two recent cases highlight how the law has intervened in two quite different scenarios.
In the first case of Kaur -v- Estate of Karnail Singh & Others [2023] EWHC 304 (Fam) the testator left his estate valued at £1.9 million entirely to his two sons. He left nothing to his wife of 63 years or to his four daughters on the basis he wished his estate to pass solely down the male line. In cases like this, the Inheritance (Provision for Family and Dependants) Act 1975 can assist claimants who fall into certain classes. Spouses are just one of the classes of potential claimant (others include children of the deceased, cohabitees, or those maintained by the deceased at the date of death) who may apply for provision from an estate from which they have been excluded.
The court will ask two questions: has reasonable provision been made; and, if not, what provision would be reasonable. The Act is not there to rewrite the testator’s will although it does to an extent impinge upon testamentary freedom. The Act is designed, in the case of spouses at least, to avoid the risk that a surviving spouse, particularly one who had contributed to the marriage fully over a such a long period as in this case, would not find herself in a worse position than if the marriage had ended by divorce rather than death. The Act is not new, the claim in this case was not contested by one of the sons, and the other (with whom the relationship was fractured) refused to acknowledge or take part in the proceedings. The court found it relatively easy therefore to make an order that Mrs Kaur receive half of her husband’s net estate.
It would be unlikely to find a more straightforward claim under the 1975 Act. Most cases are far more acrimonious, and a lot of evidence will need to be presented to the court to allow it to weigh up the competing factors including the means of each of the competing potential beneficiaries, their financial and health circumstances, whether children are involved and so on. Each case turns on its own facts.
Why then was this case so widely reported? Firstly, it was a lesson in how, when the parties co-operate (even when one refuses to take part and so an order is needed), the court rules allow the court to act swiftly and summarily to assist the spouse.
Secondly, and the issue which seemed to spark media interest, was the issue of whether it was ethical or fair in modern society for a will which follows the traditional ‘male heir’ line of inheritance to be upheld. Had the claimants been the adult sisters instead of the spouse, the court would have had more difficulty in altering the terms of the will unless there were circumstances as set out within the Act that meant that they would have merited reasonable provision. The fact that the reasoning behind the will may be seen by some to be ‘outdated’ or ‘sexist’ would not be reason enough on its own to merit an order varying the will.
This contrasts with the second case of Mate -v- Mate [2023] EWHC 238 (Ch) which has been widely reported as a triumph over the sexism allegedly inherent in a Yorkshire farming family where the family farm was left by the deceased to his two sons and wife, excluding his three daughters including the claimant, Julie. In this case, Julie did not seek to overturn the will of her late father although she made it clear in letters to her mothers and sisters that she considered the will and her brothers’ behaviour toward her and her sisters manifestly unfair, whether it was due to bloody mindedness, or simply male chauvinism, it simply “wouldn’t wash” with Julie and she sought to right that perceived wrong. She believed that she and her sisters had a personal and moral stake in the farm due to their long hours worked to their detriment throughout their childhood and into adulthood.
In particular, after her father’s death, and when the farm was starting to struggle, Julie sought to assist her mother to realise some value in the farmland, seeking to remove it from the greenbelt for development for the benefit “of the girls”. Despite Julie’s hard work in dealing with planning consultants and getting the approval needed, her mother signed over her interest to her sons shortly after they had agreed a sale of the land to a developer for £9 million without informing Julie.
Julie put her claim in two ways. The first was the basis that we see so often in farming families – that a promise was made to Julie, that she acted upon to her detriment and that the promise should be upheld. The court could not find enough evidence that she had been promised an equal share of the proceeds of sale and that claim failed. The second claim was on the basis of unjust enrichment – that the brothers clearly cannot have expected to Julie to do all of the work over a number of years in relation to obtaining the appropriate permissions to allow them to sell the land for no reward. She had discussed the matter with her mother and brothers and left them in no doubt that she expected to benefit from the sale, none of them rejected the benefit that they were getting or Julie’s efforts. In those circumstances the judge found that Andrew and Robert Mate were enriched by Julie’s services in circumstances which were unjust because they knew she was not providing those services without expecting payment and they made no attempt to reward her for those services. Andrew and Robert were ordered to pay £652,000 being the value of those services.
Again, despite how the case has been reported, the court did not consider the question of whether the testator’s wishes were fair or ethical in modern society where excluding children solely on the basis of their sex may be seen as sexist, outdated or discriminatory. Those are not factors to be taken into account. The judge did not take into account whether her brothers’ attitudes were sexist, although their behaviour toward their sister was, on her evidence, objectionable, instead focusing on what promises were or were not made and the value of the work that Julie had done.
While the motivation for the claim may have been a sense of unfairness based on outdated attitudes, the court can only (at least for now) consider a claim based on established legal principles regardless of how quickly societal norms and attitudes may change. If, however, those missing out have been taken advantage of, or promises to them broken, or they find themselves worse off where it would be unreasonable to make no provision at all, the court can and will step in to assist.
For further advice or assistance on contentious probate matters, please contact Nina Ferris (nina.ferris@hilldickinson.com)
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