How English courts deal with gender discrimination in inheritance disputes

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

Kaur was married to Singh for 66 years, and by the time of his death was herself elderly and disabled. During their marriage, she had raised their children and worked in the family business for no salary. She had only very modest assets in her own name and her only income was £12,000 a year in state benefits. 

Throughout their marriage she had been completely financially dependent on her husband, such that his failure to provide for her in his will left her effectively destitute.  

The 1975 act is an essential safeguard against outcomes of this nature. The basic mechanics of the act are relatively simple: if a deceased’s will (or intestacy) fails to make reasonable financial provision for a close family member or dependent, then the court has discretion to make an order redistributing their estate to ensure that such provision is made. 

Effectively, the court applies a two-stage test: first, it determines whether the will (or intestacy) makes reasonable financial provision for the applicant and, if it finds that it does not, it goes on to determine what reasonable financial provision for that applicant is and makes an order accordingly.

Provision under the act is granted on a discretionary basis, depending on the circumstances of each case.

Clearly, Kaur had little difficulty in satisfying the first stage of the test. Indeed, Mr Justice Peel commented that this was “the clearest possible case… that reasonable provision (had) not been made”. 

‘Divorce cross-check’

As to the second stage, claims by spouses of the deceased are treated differently to other categories of claimants under the 1975 act. For one thing, such claims are not limited to the provision necessary for their “maintenance” — as is the case for any other claimant. 

In addition, in determining the level of provision that should be awarded to spouses, the court has regard to what is known as the “divorce cross-check”, allowing it to ensure that the applicant is not left worse off as a widow than they would have been as a hypothetical divorcee. 

In this case, the judge found Kaur to be “a wife who made a full and equal contribution to the marriage in accordance with the seminal case of White vs White (2000)”. This was a landmark family case that established a starting assumption of an equal split of matrimonial assets on divorce. 

Singh had a palpable obligation to make provision for his wife. As the judgment stated, “it is hard to see how any other conclusion can be reached”

Combined with other factors including Kaur’s limited financial resources compared with her needs, the size of her late husband’s estate, her disability and age, the length of their marriage, and her contribution to their family, the judge concluded that this pointed “unerringly” to the conclusion that Kaur should receive 50 per cent of the net value of Singh’s estate, after her legal costs had been deducted from its gross value. 

Singh had a palpable obligation to make provision for his wife. As the judgment stated, “it is hard to see how any other conclusion can be reached”.  

A defining feature of this case was the strength of Kaur’s claim and lack of any competing claim to Singh’s estate. One of their sons explicitly supported his mother in making her claim. 

The other, who is estranged from his mother, refused to acknowledge the proceedings. This forced Kaur to proceed to trial, but meant that the court was able to deal with her claim summarily and on the basis that it was undefended. 

While the case of Kaur is not therefore a precedent-setting outcome, it does demonstrate that full-blown trials can be avoided in clear-cut inheritance disputes. 

In reality, it is unusual for such an unambiguous case to reach the courts; 1975 act disputes are commonly settled out of court and a case as one-sided as this ought to have been ripe for early settlement. 

But as one of Kaur’s sons would not engage with proceedings, let alone negotiate, she was forced to trial. The case therefore grants us a rare opportunity to see how emphatically the court deals with claims involving manifest injustice. 

Balancing act

Most claims under the 1975 act are more nuanced and require a complex balancing act between the competing needs and rights of numerous beneficiaries to arrive at a fair outcome. 

In the well-known case of Illot vs Mitson, for example, the deceased had not just left her estate to other parties, she had expressly stated she did not want her daughter to inherit from her estate because they did not have a good relationship. 

In the end, an award was made in favour of the daughter, but it was a relatively small one (around 10 per cent of her mother’s estate) and the court was influenced by the fact that the estrangement between the mother and daughter had been largely of the mother’s making. Ultimately, the court looks to do what is fair in all the circumstances of the case.  

These cases and others like them show that, despite the reverence with which testamentary freedom is still treated by the English courts, the courts will not hesitate to overturn a will where the interests of justice require it. 

This case is a warning to those making wills that English courts, in their support of more modern family values, will not consider a desire to pass an estate down the male line as sufficient reason to leave female dependants with nothing

The law in this area has developed to reflect the reality that testamentary freedom is not the only collective value our society should adhere to. Arguably, this discretionary system forms a decent compromise between a testator’s autonomy and the interests of justice.  

Importantly, our courts will not see a vulnerable spouse who has contributed to a marriage over many years simply be cut out of a will, and will instead award them a fair share of their partner’s estate. 

What is less clear is how the court would have dealt with a more nuanced set of circumstances; for example, if Kaur had been left some provision by Singh but less than the 50 per cent she claimed, or if one of their sons had a disability or need which meant he required more than the 50 per cent left to them. 

It is difficult to discuss this case without acknowledging the separate but divisive issue of the gendered nature of Singh’s testamentary wishes. It is not unusual to come across wills leaving assets solely to male heirs as the preference to do so remains common in some cultures. Increasingly though, such provisions do seem an affront to modern sensibilities. 

It is important to remember that the 1975 act does not look at the moral rightness or wrongness of a testator’s wishes, it is simply designed to balance and meet the needs of claimants and existing beneficiaries. 

It is hugely reassuring that our court system will not allow gender discrimination a place in the system of succession and, other things being equal, will overturn such injustice. 

It is not surprising then that the judgment in Kaur does not show any explicit analysis of an intention to overcome Singh’s patriarchal views of succession.

However, in overlooking this value system as an irrelevant consideration, and making the distribution that he does, the judge certainly seems by our contemporary standards to be righting a great wrong. 

Arguably, this case is a warning to those making wills that English courts, in their support of more modern family values, will not consider a desire to pass an estate down the male line as sufficient reason to leave female dependants with nothing. 

It is hugely reassuring that our court system will not allow gender discrimination a place in the system of succession and, other things being equal, will overturn such injustice.      

Samara Dutton is a partner at Natalie Spong is a trainee solicitor at Collyer Bristow