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How English courts deal with gender discrimination in inheritance disputes
English law will not allow gender discrimination a place in the system of succession.
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Published 5 May 2023
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Samara Dutton
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The High Court in the case of Kaur v Estate of Karnail Singh and Ors, awarded Mrs Kaur, the 83-year-old wife of the deceased, 50% of the net assets of Singh’s estate, valued between £1.2mn and £1.9mn, under the Inheritance (Provision for Family and Dependants) Act 1975, even though Singh’s will had disinherited her and their four daughters, and left the entire estate to their two sons.
The case is notable for the ease with which the court discounted the relevance of Singh’s wishes, and the patriarchal thinking behind them. In this respect, it touches on the tension between two competing succession regimes, namely testamentary freedom and forced heirship.
Testamentary freedom has long been upheld as the fundamental guiding principle in England and Wales. It means that in this jurisdiction, an individual with full capacity is (in theory) entitled to leave their estate to whomever they like, whatever their reasons for doing so. By contrast, under a forced heirship regime, the state imposes automatic rights of inheritance for close family members irrespective of the individual’s wishes, leaving only a portion of the estate in respect of which the individual is entitled to choose their beneficiaries.
The 1975 Act provides a safeguard against the potential injustice that may arise under a system of complete testamentary freedom, and allows for the court to redistribute the estate to make reasonable financial provision for a close family member or dependent if the will fails to do so. The act is discretionary, and distributions under it depend on the specific circumstances of each case.
The judge found that Kaur’s claim presented the clearest possible case that reasonable provision had not been made for her. Having fully contributed to their family throughout the 66-year marriage yet now facing near destitution relying on state benefits, the elderly and disabled Mrs Kaur was awarded 50% of the estate’s net value after legal costs had been deducted. The judge also applied the ‘divorce cross-check’ to ensure that she was not left worse off as a widow than she would have been as a hypothetical divorcee.
The case highlights the importance of making reasonable provision for one’s dependents in one’s will, as the court will challenge the principle of testamentary freedom to overturn obvious injustice, of a gendered nature or otherwise.
For more information, please visit our Contentious Probate page.
This article was first published in the FT Adviser on 4 of May 2023.
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Longer Reads
How English courts deal with gender discrimination in inheritance disputes
English law will not allow gender discrimination a place in the system of succession.
Published 5 May 2023
Associated sectors / services
Authors
The High Court in the case of Kaur v Estate of Karnail Singh and Ors, awarded Mrs Kaur, the 83-year-old wife of the deceased, 50% of the net assets of Singh’s estate, valued between £1.2mn and £1.9mn, under the Inheritance (Provision for Family and Dependants) Act 1975, even though Singh’s will had disinherited her and their four daughters, and left the entire estate to their two sons.
The case is notable for the ease with which the court discounted the relevance of Singh’s wishes, and the patriarchal thinking behind them. In this respect, it touches on the tension between two competing succession regimes, namely testamentary freedom and forced heirship.
Testamentary freedom has long been upheld as the fundamental guiding principle in England and Wales. It means that in this jurisdiction, an individual with full capacity is (in theory) entitled to leave their estate to whomever they like, whatever their reasons for doing so. By contrast, under a forced heirship regime, the state imposes automatic rights of inheritance for close family members irrespective of the individual’s wishes, leaving only a portion of the estate in respect of which the individual is entitled to choose their beneficiaries.
The 1975 Act provides a safeguard against the potential injustice that may arise under a system of complete testamentary freedom, and allows for the court to redistribute the estate to make reasonable financial provision for a close family member or dependent if the will fails to do so. The act is discretionary, and distributions under it depend on the specific circumstances of each case.
The judge found that Kaur’s claim presented the clearest possible case that reasonable provision had not been made for her. Having fully contributed to their family throughout the 66-year marriage yet now facing near destitution relying on state benefits, the elderly and disabled Mrs Kaur was awarded 50% of the estate’s net value after legal costs had been deducted. The judge also applied the ‘divorce cross-check’ to ensure that she was not left worse off as a widow than she would have been as a hypothetical divorcee.
The case highlights the importance of making reasonable provision for one’s dependents in one’s will, as the court will challenge the principle of testamentary freedom to overturn obvious injustice, of a gendered nature or otherwise.
For more information, please visit our Contentious Probate page.
This article was first published in the FT Adviser on 4 of May 2023.
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- Trust & Estates Disputes
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Samara
DuttonPartner
Specialising in Contentious trusts & probate and Private wealth
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