How English courts deal with gender discrimination in inheritance disputes
- Describe the circumstances around the Karnail Singh's estate
- Explain the purpose of the Inheritance (Provision for Family and Dependants) Act 1975
- Identify similarities to other contested will cases
- Describe the circumstances around the Karnail Singh's estate
- Explain the purpose of the Inheritance (Provision for Family and Dependants) Act 1975
- Identify similarities to other contested will cases
In Kaur vs Estate of Karnail Singh and Ors, the High Court directly overruled Karnail Singh’s express wish to leave his whole estate, valued between £1.2mn and £1.9mn, solely to his two sons, disinheriting his 83-year-old wife, Mrs Kaur, and their four daughters entirely.
Ignoring Singh’s 2005 will to that effect, the court emphatically upheld Kaur’s claim under the Inheritance (Provision for Family and Dependants) Act 1975, awarding her 50 per cent of the net assets of Singh’s estate (after costs) and a £20,000 interim payment to assist her while the administration of the estate was concluded.
The case is notable for the ease with which the court discounted the relevance of Singh’s wishes. In this respect, it touches on the tension between two competing succession regimes, namely testamentary freedom and forced heirship.
Guiding principle
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.
Historically, even English law had a forced heirship regime dating from Roman law, whereby a deceased’s wife and heir were each entitled to one third of his moveable property.
Nowadays, it is generally civil law jurisdictions and cultures that enforce forced heirship regimes, while common law jurisdictions such as England favour the principle of testamentary freedom.
The problem with cases like Kaur is that they seem to fly in the face of that freedom. Critics query the point of extolling a system of complete choice for the testator when it remains possible for that choice to be completely flouted by the courts. Some suggest this is merely forced heirship by another name.
In fact, the 1975 act provides a crucial check on the injustices that can arise under a regime of complete testamentary freedom and the Kaur case is a rare example of such injustice in its most unambiguous form.
The 1975 act provides a crucial check on the injustices that can arise under a regime of complete testamentary freedom and the Kaur case is a rare example of such injustice in its most unambiguous form