Kaur v Estate of Karnail Singh & Ors: A challenge to testamentary capacity?
Testamentary freedom is a well established and important principle in English law. It enables Testators to leave their estate to whomever they wish, without forced heirship rules.
Testators in the UK are under no obligation to leave their estate to their spouse or wider family, unlike in European jurisdictions, where there are forced heirship rules. However, if an individual has been left out of your Will or has not inherited the share they think they should have, then they may be able to bring a claim for ‘reasonable financial provision’ under the Inheritance (Provision for Family & Dependants) Act 1975 (‘1975 Act’).
To make a claim under the 1975 Act an individual must fall into one of the following categories:
- The spouse or civil partner of the deceased.
- The former spouse or civil partner of the deceased (as long as that person has not remarried/entered into a subsequent civil partnership).
- A person who, for the two years before the death, was living with the deceased as if they were a spouse or civil partner.
- A child of the deceased
- A person who was treated as a child of the family by the deceased.
- Any other person who was being maintained, wholly or partly, by the deceased immediately before their death.
If an individual falls into one of the above categories, the court will then consider whether the Will fails to make reasonable financial provision for the claimant and if so, what financial provision should the individual receive. In deciding these questions, the court considers a number of factors listed in S3 of the 1975 Act, which are as follows:
- The financial resources and needs of the applicant.
- The financial resources and needs of any other applicant.
- The financial resources and needs of the beneficiaries.
- Any obligations and responsibilities of the deceased towards any applicant and any beneficiary.
- The size and nature of the estate of the deceased.
- Any physical or mental disability of any applicant or beneficiary.
- Any other matter, including conduct, which the court may consider relevant.
When a spouse is bringing a 1975 Act claim the court will also consider the following additional factors:
- The age of the applicant and the length of the marriage/civil partnership.
- The contribution made by the applicant to the welfare of the family of the deceased e.g. any contribution made by looking after the home or caring for the family.
- The ‘divorce cross check’ – the provision the applicant might reasonably have expected to receive if the marriage were terminated by divorce rather than death.
The case of Kaur v Estate of Karnail Singh & Ors  EWHC 304 (Fam) is a prime example of a 1975 Act claim, which arguably provides a mechanism whereby testamentary freedom can be challenged or restricted. The case has been widely reported and has attracted a lot of attention, specifically on the point of testamentary freedom.
Mrs Kaur and Mr Singh had been married for 66 years. They had seven children together; one had sadly predeceased leaving two sons and four daughters. Mrs Kaur had ‘played a full role in the marriage’ and was ‘financially dependent’ on Mr Singh.
Mr Singh died on 21 August 2021. The terms of his Will left his entire estate to be divided equally between his two sons, excluding Mrs Kaur and their daughters. Mr Singh wished to adopt a cultural norm to leave his estate solely to the male bloodline.
The estate was worth between £1.2 million – £1.9 million and was built up during Mrs Kaur and Mr Singh’s 66 year marriage. Despite this, all assets were in Mr Singh’s name and Mrs Kaur had very little in the way of her own assets. In fact, without Mr Singh’s financial assistance, Mrs Kaur was of extremely limited means with a modest state benefit of £12,000 a year. Furthermore, Mrs Kaur was 83 and of ill health. After Mr Singh passed away, she had been forced to leave the family home as one of her son’s had moved in and relations had become strained.
Mrs Kaur issued a claim against Mr Singh’s estate for reasonable financial provision under the 1975 Act. Mrs Kaur’s claim was for half of the estate on the basis of the ‘divorce cross check’ which provides that a surviving spouse should not be worse off as a widow, then had the marriage ended in divorce rather than death.
In delivering his judgement, Justice Peel concluded reasonable financial provision had not been made for Mrs Kaur. He further commented “It is hard to see how any other conclusion can be reached. After a marriage of 66 years, to which she made a full and equal contribution, and during which all the assets accrued, she is left with next to nothing. The divorce cross check points unerringly towards an equal division of assets.”
Justice Peel awarded Mrs Kaur 50% of the estate, which she had indicated would meet her needs. He also ordered that her costs were to be paid by the estate and that £20,000 should be made immediately available to her to meet her financial needs whilst the estate was being administered.
This case perfectly illustrates why the 1975 Act is necessary and is evidence that a spouse who has equally contributed for a significant number of years, cannot simply be excluded. There was no doubt that Mrs Kaur had not been left reasonable financial provision under the will, however, without this Act, Mrs Kaur would have been left with nothing. Consequently, the 1975 Act provides crucial protection to those who have been unreasonably excluded from a Will.
Whilst testamentary freedom remains a crucial principle under English Law, this case sends an important warning to testators, that they should not ignore the protection given to vulnerable beneficiaries under the 1975 Act. If they choose to do so, their wishes will not always be supported by the courts if it results in an injustice to those left behind.
This case further demonstrates that cultural or religious basis is no longer a justified reason to exclude a spouse, especially when the marriage is long and the contribution significant. In addition, it recognised that female heirs, including spouses and children, have the same entitlement to fair provision as male heirs. This approach tackles gender-based discrimination that can arise via testamentary freedom and ensure financial security for all dependents, regardless of their gender.
Those drafting wills should also be cautious to ensure they fully advise testators of the possibility and consequences of a claim made by an individual that has not been left reasonable financial provision under the Will.
1975 Act claims can take months, if not years to reach the courts, which can often be a daunting prospect for potential claimants. However, this was not the case for Mrs Kaur as, her case was heard within 12 weeks by way of a summary process due to the fact one of the defendants failed to engage in the process, and the other did not oppose her claim. Justice Peel promoted this ‘abbreviated’ approach on the basis that Mrs Kaur was “elderly and impoverished, and it is unreasonable to prolong proceedings unless there is clear justification for doing so. I am satisfied that in the circumstances of this case I can, and should, make a decision summarily.” It is possible that this could make similar 1975 Act claims more accessible and less timely to bring, which could encourage potential claimants to bring their claim. However, it is important to note that an ‘abbreviated’ approach will not be appropriate in all circumstances.
Of course, it would have been preferable too if Mrs Kaur had not had to issue proceedings at all. Mrs Kaur’s claim was obviously a meritorious one and, in our view, should have been settled by way of a round table discussion or mediation even before proceedings should have had to be issued. This would have saved further time and money for all involved and it is unfortunate that that was not possible in this case.
For more information on 1975 Act claims please contact our Private Client Dispute Resolution Team.
The content of this page is a summary of the law in force at the date of publication and is not exhaustive, nor does it contain definitive advice. Specialist legal advice should be sought in relation to any queries that may arise.
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